Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 2 - Evidence, December 11, 2002
OTTAWA, Wednesday, December 11, 2002
The Standing Senate Committee on Fisheries and Oceans met this day at 6:20 p.m. to examine matters relating to straddling stocks and to fish habitat.
Senator Gerald J. Comeau (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I wish to note that this is our first meeting under the new committee name, which will now be known as Standing Senate Committee on Fisheries and Oceans. We now have ``the oceans'' at the end of our name. We should have done this some time ago given some of the work we have done in regard to oceans in the past years. That was passed last week in the Senate.
Our witness this evening is Robert Hage from the department of foreign affairs. I will not go into a description of Mr. Hage's long and distinguished career in public service. However, I will say that he is a native of Calgary and joined External Affairs in 1972. He has served in Canadian embassies throughout the world and has been deputy head of the commission for the European Union in Brussels. He has been the alternate Canadian representative at the United Nations Conference on the Law of the Sea. He is currently the Director General of the Legal Affairs Bureau of the Department of Foreign Affairs and International Trade.
Please introduce your colleagues, and I understand you have an opening statement.
Mr. Robert Hage, Director General, Legal Affairs Bureau, Department of Foreign Affairs and International Trade: Honourable senators, it is a pleasure for us to be here. We are also pleased to see that you have added the words ``and oceans'' to your title. We in foreign affairs who deal with oceans questions certainly welcome that.
I wish to introduce my colleagues. Mr. Ehinger and Ms. Saunders, both are from Winnipeg. You are facing a western phalanx tonight.
I have also circulated a copy of the text. I do not plan to read it; I will simply highlight different points. I have also distributed a number of documents to which I will be referring.
I first wish to refer to the chart of Fisheries' Agreements that Canada has been involved in, starting with the 1982 United Nations Convention on the Law of the Sea, UNCLOS, and ending with the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, WCPFC.
This document does indicate, as well, whether these are binding or non-binding agreements, depending on their nature, and the date adopted — that is, the date the conference ended and the members attending the conference agreed to adopt the text. It also indicates whether Canada has signed or ratified.
Honourable senators will be familiar with the signature-ratification question. ``Signature'' is an indication that you subscribe to the purpose and intent of the treaty. ``Ratification'' means that you are bound by the terms of the convention. Being in the process of debating the question of the ratification of Kyoto, you are familiar with the process.
Finally, the document outlines whether the treaty is in force. Every treaty contains a provision as to how many ratifications are required before the treaty enters into force. That is indicated on the chart, as well.
Second, we have another diagram of the legal regimes of the oceans and airspace areas. This indicates, in a graphic form, the different terms used for the regime off the coasts of Canada or other nation states that are used in the Law of the Sea Convention.
I had the privilege yesterday of attending in New York the 20th anniversary celebrations of the Law of the Sea Convention. It concluded, as a matter of fact, on December 10, 1982. There was a fairly large ceremony yesterday at the UN to mark this event.
The terms used on this chart, and then in my other remarks, refer to nautical miles, which are somewhat larger than regular miles. When you hear about the 200-mile EEZ, Exclusive Economic Zone, or the 12-mile territorial sea, these are all measured in nautical miles.
The main system of the international system of the oceans begins with baselines, which denote the end of a state's land territory. When you are doing measurements under the Law of the Sea Convention, all the measurements are calculated from the baseline.
You will be familiar with the territorial sea. It is the 12-mile extension from the baselines. In this area, a state has complete sovereignty. This is the first item on the chart. In that area, Canada and every other state, whether you are a party to the convention or not, customary international law indicates that you have full sovereignty in that 12-mile area. Ships of all states enjoy the right of innocent passage, however, within that territorial sea.
Next, we have something that you do not hear too often, and that is the ``contiguous zone'' which goes out to 24 miles, another 12 miles beyond the territorial sea, where a state can exercise certain jurisdiction largely related to customs, immigration and fiscal matters.
After that, we have the EEZ, which is 200 miles from the baselines from which the territorial sea is measured. A state in those areas has certain jurisdictional rights — not sovereignty — but jurisdictional rights over such things as marine scientific research and protection of the marine environment. The state also has sovereign rights over natural resources.
On the West Coast of Canada where the continental shelf does not extend, as far as we know, beyond 200 nautical miles, Canada has the jurisdiction over any minerals that are found within that 200-mile EEZ.
The next area that honourable senators will be familiar with is the high seas where no state has sovereignty or jurisdiction over the high seas. UNCLOS specifically provides that no state may purport to subject any area of the high seas to its sovereignty. There is freedom of fishing on the high seas.
Next is the continental shelf. The continental shelf has a term that is defined both in juridical fashion and geological fashion. The definition in the convention is partly geological and partly juridical. The Convention on the Law of the Sea gives states such as Canada sovereign rights over the resources of the continental shelf beyond 200 miles where the geological shelf extends beyond 200 miles.
We do not, however, have any rights to the water column above the continental shelf when it extends beyond the economic zone. Thus, a coastal state such as Canada has jurisdiction over sedentary species — those that are found on the sea floor — but we do not have exclusive rights to fish swimming over the continental shelf. This is important because the continental shelf is generally in waters that attract fish. When you find a continental shelf, generally you find fishing grounds, and the fish do not necessarily respect the 200-mile limit.
Canada's Grand Banks is a classic example of that where you have fish that are found beyond the 200-mile limit.
The limits of the continental shelf are determined in Article 76 of the convention. This is a complex formula. I will not go into all the detail. We have all brought these texts. Article 76 has the provisions that were heavily negotiated during the 10-year conference as to how the outer limit of a state's continental shelf would be determined. After the negotiations, it was agreed that the maximum limit of a shelf is 350 miles from the baselines, or 100 miles from the 2,500-metre isobath, whichever is greatest.
I refer you to this map to give you a general idea of the different lines that exist when measuring the areas of jurisdiction off of Canada's East Coast.
Honourable senators will see the 200-mile limit. You will see the 2,500-metre isobath, which is the depth of water measurement for the continental shelf. You will see the 350-mile cut-off line. Honourable senators will also see 100 miles beyond the 2,500-metre isobath, which is the outer limit for the Canadian shelf. You will see in looking at this map that Canada has an extensive shelf off the East Coast, and in the Arctic, that stretches beyond the 200-mile EEZ. This is an area that Canada can claim as part of its continental shelf.
To complicate matters somewhat, the Commission of the Limits of the Continental Shelf was established by the UNCLOS as a means to assist the coastal state in making the determination of the outer limits of the shelf. This 21- member commission comprises experts that will receive a submission from a coastal state and make recommendations with regard to that state's submission as to where its shelf happens to end.
Beyond the limits of national jurisdiction — beyond what Canada or other wide shelf states might claim — we end up with the deep seabed that is the ocean floor beyond the continental shelf. Under the convention, this is now called the ``Area.'' This is termed the ``common heritage of mankind.'' This was the feature that actually triggered the 1973 Third UN Conference on the Law of the Sea where a visionary individual by the name of Arvid Pardo from Malta inspired the UN, during the 1960s, to call for a study of the deep seabed area, which he referred to as the common heritage of mankind, where minerals are found. To save these minerals — not for a particular nation state that might be able to have the technology to exploit them, but to save them for the international community — he called for a conference to set a regime in place to manage the deep seabed. This regime is the International Seabed Authority, which is based in Kingston, Jamaica.
In respect of fisheries, there are some important aspects of the ocean legal regime that I will outline. First, a coastal state has sovereign rights over the fish in the water column and sedentary species out to 200 miles; second, a coastal state with a continental shelf extending beyond 200 miles — such as Canada has — has sovereign rights over the sedentary species on the extended shelf, but not in the water column above it; and, third, there is freedom of fishing on the high seas.
However, other provisions relating to the conservation of fishing resources balance these rights over resources and freedoms of fishing. I believe Mr. Chamut, Assistant Deputy Minister of Fisheries and Oceans, in his address to this committee on November 26, said something to the effect that the fish do not abide by the painted lines and tend to stray over the boundaries. In recognition of this, UNCLOS places duties on states to cooperate in the management of fish stocks, such as those as we call them on the Nose and Tail of the Grand Banks. Those are the two areas that extend beyond our 200-mile limit which are above the continental shelf and where rich fish stocks are found. These are the stocks that ``straddle'' the boundary between the state and the high seas. Similarly, states must cooperate in the management of highly migratory fish stocks that traverse the EEZs of many states as well as the high seas. The freedom to fish on the high seas is qualified by these duties to cooperate.
The past decade has also seen the development of a number of fishing instruments, chief among them the 1995 United Nations Agreement on Straddling and Highly Migratory Fish Stocks. This agreement provides a sense of triumph for Canadian diplomacy. We inspired it when we managed to get on the agenda of the 1992 United Nations Conference on Environment and Development in Rio de Janeiro a reference to the need for the General Assembly to take up the question of straddling stocks. That was the same conference that inspired the Climate Change Convention and the Biodiversity Convention. This is one of the three major international items to come out of the Rio process.
We worked with a group of core states to not only get this on the agenda of the Rio conference, but then to develop an international convention that related particularly to straddling stocks, which is the type of stock that we have that straddles the 200-mile limit off our east coast.
This agreement elaborates on the duty of states to cooperate in the management of straddling and highly migratory fish stocks on the high seas. Indeed, the relationship between the fish stocks agreement and UNCLOS is underlined by the full title of the fish stocks agreement: Agreement for the Implementation of the Provisions of the Convention relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.
The important thing about this very long title is that it is implementing the provision of this convention. In other words, the convention is not static. It is static in the sense that the lines of jurisdiction are well-established — the 12- mile territorial sea, the 200-mile EEZ and the regime for the continental shelf. However, you can expand some of the provisions through an international agreement such as the straddling stocks agreement to deal with a particular situation.
The provisions in the convention were not deemed adequate by Canada. We tried for 10 years to get solid and effective straddling stocks provisions in the convention. We did not succeed entirely. Following the conclusion of the negotiations in 1982, we set about developing with other states the basis for an international regime to manage straddling stocks. The result is the 1995 convention.
The 1995 agreement entered into force a year ago and currently has 32 parties. Canada was a leader in the negotiation of this agreement, as I mentioned. Canada became a party in 1999. Other international fisheries agreements include the Food and Agricultural Organization, or FAO Compliance Agreement, the FAO Code of Conduct and the FAO International Plan of Action on Illegal, Unreported and Unregulated Fishing. This is called IUU fishing.
The Compliance Agreement stipulates some duties of flag states vis-à-vis their fishing vessels. It provides for information and information exchange between states and calls for international cooperation. Its provisions are not as detailed or as strong as the UN Fish Stocks Agreement. The code of conduct is a non-binding set of guidelines covering topics from fishing operations to aquaculture, to post-harvest practices. Last, the international plan of action on IUU fishing is a non-binding document best viewed as a toolbox of measures for states to use in combatting that type of fishing. It lists the responsibilities of flag states, of port states, of regional fishing management organizations and of market states. It is in large part a compilation of responsibilities previously captured in other documents.
In November, I led a Canadian delegation to a conference on IUU fishing hosted by Spain in Santiago de Compostela. It is clear that Spain and other fishing states wish to work with costal states such as Canada in combatting the problem of IUU fishing. The conference declaration states that IUU fishing is caused by a number of factors, including a lack of effective flag state control of fishing vessels — which is something that Canada has been saying for years. They recognize that this type of fishing inflicts damage on the fishing industry when the fishing industry operates under legal rules.
In addition to these global instruments, there is also a web of regional fisheries management organizations. To add to the acronyms, these are called RFMOs, which stands for regional fishing management organizations that has grown up to manage fish stocks on the high seas. Some of these organizations, such as the Northwest Atlantic Fisheries Organization, NAFO, are certainly well-known to members of this committee, as is the International Commission for the Conservation of Atlantic Tuna, ICCAT. There is a new organization called the Western and Central Pacific Fisheries Commission, WCPFC, which has not yet commenced operations.
The UN Fish Stocks Agreement encourages states to cooperate through RFMOs or other arrangements to conserve and manage straddling and highly migratory fish stocks. This is important and, in the Canadian context, it is similar in the way certain powers here are given to the provinces and certain powers are given to the federal government. The provinces know the local situation and can deal with particular local situations. It is the same with RFMO. The rules, particularly in the South Pacific, do not necessarily have to be the same as the rules in the North Atlantic. However, through the UN Fish Stocks Agreement, there is a basis of rules to be applied. I will outline a number of them shortly. These rules deal with things such as inspection and boarding of vessels that might be suspected of violating the rules of the RFMOs.
While there are differences in both their provisions and dynamics, there are common elements to many RFMOs: Their members receive scientific advice regarding the fish stocks, determine the total allowable catch, TAC, and allocate it amongst themselves. The members also set conservation measures such as gear sizes as well as time and area closures. Enforcement of RFMO conservation measures is generally left up to the flag state of each vessel. The exception in this regard is NAFO, which has developed an international regime for boarding and inspection. Decisions in RFMOs are usually either taken by consensus or a combination of majority decision with recourse to an objection procedure. Objecting allows a state to avoid application of an RFMO measure to itself. RFMOs generally do not have binding dispute settlement provisions.
UNCLOS, the UN Fish Stocks Agreement, the compliance agreement, the code of conduct and the IPOA on IUU fishing combined with RFMOs and bilateral agreements constitute the international fisheries legal regime within which Canada and other states operate.
I would now like to respond to a number of questions in which I understand the committee has expressed interest. The first point regards the ratification by Canada of UNCLOS.
Canada is committed to ratifying this convention. Timing remains the issue and is under discussion. A lengthy delay in Canadian ratification was occasioned by problems with the deep seabed mining portions of the convention. Many states shared these concerns, and they were addressed by an implementing agreement adopted by the General Assembly in 1994. This opened the way for many western states to ratify the convention.
The timing of Canada's ratification has also been influenced by difficulties with the fisheries portion of UNCLOS and a desire to ensure that the major states engaged in fishing activities off Canada's coast are subject to the UN Fish Stocks Agreement. A key player in this regard is the European Union. The EU is publicly committed to ratifying the UN Fish Stocks Agreement and has announced its intention to ratify ``en bloc'' — in other words, to deposit instruments of ratification for the European Union and all fifteen member states simultaneously. Our understanding is that all member states, with the exceptions of Ireland and Greece, have completed their internal processes and are ready to ratify. Internal ratification processes in Ireland and Greece are underway. It is my understanding that the European Union will ratify this convention before June of next year.
There are, of course, other Canadian interests under UNCLOS that will have to be taken into account. The delineation of Canada's continental shelf would be among our most important considerations as we have one of the largest continental shelves in the world. The Commission on Limits of the Continental Shelf established by UNCLOS met earlier this year to consider the Russian Federation's submission to delineate the outer limits of the continental shelf in the Arctic. This was the first submission presented to that body. Other submissions are expected shortly. The Brazilian ambassador at the UN announced his country would likely make a submission in the near future. Canada can only become a member of the commission if we ratify the convention.
I would like to address the suggestion voiced by various quarters, including the Tenth Report of the House Standing Committee on Fisheries and Oceans that Canada establish custodial management over the Nose and Tail of the Grand Banks and the Flemish Cap. Custodial management would be seen as an extension of jurisdiction by another name. As noted in the government response to the standing committee report, unilateral extension of jurisdiction is not in Canada's interests. There is a total lack of support for unilateral extension of jurisdiction. The legal regime established by UNCLOS, which I described to you earlier this evening, is almost universally accepted and abided by.
The convention has 141 parties — in fact, three states were added just in the last two days at the commemorative anniversary in New York. Peru and Ecuador, which had had problems with regard to the fishing question off the coast of South America, have also indicated their desire to ratify. They will be ratifying in 2003.
Some of the provisions of the UN convention, including the 200-mile EEZ, are considered customary international law binding on status such as Canada, which is not yet a party to UNCLOS. All major states, with the exception of the United States and Denmark, are party to the convention. Denmark, the last European Union member not a party, has indicated it will ratify the convention by June 2003. As such, unilateral extension of jurisdiction would result in disruptions of Canada's relations — both fisheries and otherwise — with many other countries, particularly maritime powers and distant water fishing nations.
During the UNCLOS negotiations, Canada pushed very hard for coastal states to have jurisdiction over stocks that straddle the high seas and advocated strong fisheries conservation provisions. These efforts received little support and fuelled subsequent Canadian efforts to negotiate the UN Fish Stocks Agreement. The UNCLOS is a delicate balance of interests achieved after intense, decade-long negotiations. There is little appetite for reopening the text. As well, Canada's position as a non-party to UNCLOS provides an awkward base from which to argue for changes to the convention.
I will summarize the main points. First, the framework for oceans governance, including broad obligations relating to fisheries conservation and management, is found in the 1982 United Nations Convention on the Law of the Sea.
Second, fisheries provisions of UNCLOS were elaborated upon by the 1995 UN Fish Stocks Agreement, which provides for strong flag state duties and third-party boarding and inspection.
Third, other major global fisheries instruments are the FAO compliance agreement, the FAO Code of Conduct and the FAO International Plan of Action on IUU fishing.
Fourth, states cooperate in the management of straddling and highly migratory fish stocks through regional fisheries management organizations such as NAFO.
Fifth, Canada has played a significant role in building this oceans and fisheries network and will continue to advocate its improvement.
I hope that this overview of the legal regime of the oceans has proved useful to the committee. All of us are looking forward to responding to your questions.
The Chairman: Thank you for your presentation. It has been extremely helpful for all of us because we have not yet touched on this subject. Your presentation has been especially helpful to us in trying to swim through all the acronyms. I am quite sure that we will refer to your document often in the future.
Senator Cook: I am from Newfoundland. I am sure you are familiar with the crisis in fisheries in my province. One would assume that if we could extend beyond the 200-mile limit, all of our problems would be solved and there would be enough fish for everyone. I think that, because there is nothing, people want to perpetuate that myth and hope that it is the reality. There are those who will say that custodial management is the answer. The more prudent thought is that we work within NAFO.
I have two questions. The first deals with the infrastructure to take custodial management of the straddling stocks on the Nose and Tail of the Grand Banks and the Flemish Cap. I looked at your chart and saw that the compliance agreement we acceded to in 1994 is not yet in force. When will we get around to doing something? It seems that all the bits and pieces are in place and it seems that everyone is reluctant to do anything. Back home people are saying, ``If only we could get those fishing grounds in the nose and tail, all our problems would be solved.'' That is not realistic, but we dream.
Mr. Hage: I agree that it is not realistic, which is what the government said in its response to the proposals of the House committee. The House committee not only recommended extended jurisdiction; they recommended withdrawing from NAFO. I believe Mr. Chamut outlined in his testimony before you that there would be no international cooperation in controlling the straddling stocks. Canada would have to set the TACs and we would have to enforce these TACs. The capacity to do so is, as you mentioned, is in question.
We would also be fighting constant action from other countries that now fish there and would not accept this extension of Canadian jurisdiction. It would divert us from the task of conserving and managing these stocks to dealing with an ongoing skirmish — and hopefully not beyond a skirmish — with fishing states, including the United States, the European Union and others. I am not sure how many fish would be conserved in that way.
The other aspect is that we are now a party to UNFA. As I mentioned, this is something of which Canada can be very proud. We took the initiative to get this conference on the UN agenda through the Rio conference. We have achieved a fairly detailed convention that contains dispute settlement provisions. Those dispute settlement provisions and the convention are based on the UNCLOS regime that I have outlined, that is, the EEZ and cooperation between flag and coastal states on management of straddling stocks.
The first thing that would happen is that we would be taken to dispute settlement by one of the other parties to the UNFA convention. There is no question that we would lose in a dispute settlement like that because we would be challenging the 200-mile limit, which is part of customary international law. The prudent thing would be to withdraw from that convention if we were going to take an action that extended Canadian jurisdiction beyond 200 miles. Such action would defeat the very purpose that we achieved in getting the international community to agree to this convention.
The course of action that we are following, as was outlined by Mr. Chamut, is working through NAFO. As he pointed out, NAFO is not the same organization as it was in the early 1990s or the 1980s. It is a better organization now. He outlined a number of the problems that the organization faces, but he also noted that Canada and other states are moving ahead to deal with these issues.
We have been waiting a long time for EU ratification of UNFA. They have 15 member states. Each Parliament has looked at the convention and gone through the legislative regimes that are required by their practices. If all goes well, the EU will be parties to UNFA by June of next year. We will then have this other instrument, with the EU as parties, to work for the conservation and management of these straddling stocks.
Senator Cook: From my limited understanding of this subject, we seem to proceed by consensus. On the other side, I hear that, given that there are no fish, people proceed by confrontation rather than consensus. I would like your opinion on that.
Mr. Hage: NAFO can work on the basis of both consensus and votes. As Ms. Saunders has been going to the NAFO meetings on a regular basis, she has experience with the voting process in NAFO when TACs are subject to votes.
Canada is a country that favours multilateral approaches. The history of our diplomacy has demonstrated that these multilateral approaches have generally borne fruit. When we began the negotiations on the Law of the Sea convention, which was before I started in the negotiations, there was no guarantee that the 200-mile limit would be agreed to. In the negotiations there was a group of states called the Land-Locked and Geographically Disadvantaged States, or the LLGDS. They were a formidable group with no or very limited coastlines. Everything they saw the coastal states getting was diminishing what they saw as the common heritage of mankind. This was another group that was pushing the coastal states back.
During the negotiations, the coastal states prevailed. They got the 12-mile territorial sea and the 200-mile economic zone, which is now part of customary international law. Wide-shelf states such as Canada got access to the mineral resources off the coast plus the sedentary species on the continental shelf.
We share the concerns of Newfoundland on fisheries and the good management of fisheries. Newfoundland also has access to this huge continental shelf and the mineral resources on the shelf. During the negotiations, it was not a sure thing until the end that coastal states would be able to prevail to get the limits they finally got in the convention.
As with everything in diplomacy, there is a balance.
Senator Cook: I am told that Canada has Canadian observers on its fishing vessels and Spain has Spanish observers on its vessels. Is that so? It makes no sense to me for a country to police itself.
Ms. Allison Saunders, Oceans Law Section, Department of Foreign Affairs and International Trade: Honourable senators, Canada does use Canadian observers. Other countries, such as Norway, also engage Canadian observers. Within the European Union, the European Commission has contracted with a company to provide observers. These may or may not be nationals of the same flag as the vessel. They are all European nationals, but they are not necessarily assigned on a per nation basis.
Senator Cook: I also understand, and please correct me if I am wrong, that there is one observer per vessel. Given that vessels fish 24 hours a day, what goes on above deck when the observer is sleeping below deck?
Mr. Hage: Mr. Chamut responded to that question. It is not a perfect regime, but it is certainly better than not having anyone aboard.
We would like to have a more rigorous regime regarding observers, particularly with respect to the notion that observer reports must be filed on a regular basis. Unfortunately, some NAFO parties are not filing these reports regularly. That must be dealt with in the NAFO system. We are paying for these observers, as are the Europeans, and their reports must be filed in a timely manner. We would like to see them filed electronically so that they would go to the flag state and to NAFO on a just-in-time basis.
Senator Cook: They are not binding court, are they?
Mr. Hage: Not only in Canada but also in other jurisdictions an observer report is not accepted as evidence in court, as far as I understand. The observer system leads to inspections, and the inspection system is where an infraction is given and then there is either an inspection at sea or inspection in the port. Those things can leads to prosecutions. However, but the observer system certainly can lead on to other eventualities. We found it to be an effective method in the NAFO regulatory area. It is something certainly that could be improved upon. There is no question about that.
Senator Mahovlich: It seems to me that we have joined all these different groups and I question whether this is working for us. I get the feeling that some of the people who have come before us are frustrated and nothing seems to be working because the cod are gone and they are not coming back. Are we doing the right thing?
Mr. Hage: I am not the person to ask why the cod have gone. The fisheries officials have been here and spoken about a number of those issues.
The main organization on our East Coast is NAFO. NAFO was a bit of a Canadian creation. Over the years, it has served Canada well. It has not been perfect, however. As Mr. Chamut said in his testimony, it is a better organization now than it was 10 years ago. Having the observers on board and having satellite tracking have provided a fairly effective means for tracking the fish.
I do not believe you could blame NAFO for the disappearance of the groundfish. There are a variety of different reasons for that.
Senator Mahovlich: Can you possibly come up with another idea? Perhaps we should start putting our funds into scientists and coming up with a reason for all this difficulty and then follow their instructions. Would that not solve the problem?
Mr. Hage: NAFO operates on the basis of science. It is not always applied rigorously and we saw an example of that in the last NAFO meeting where the European Union voted in a TAC for Greenland halibut that we thought was not approved by the scientific advice. In general, science is followed in NAFO. While the cod is gone, the shrimp is up.
The best way of ensuring the fish stocks to come back again is not by unilateral extension of jurisdiction. The best way is working with other states, using science, using the best conservation methods, and ensuring that we are all playing by the same rules. Those rules are now outlined in the 1975 Straddling Stocks Agreement. It provides for things like boarding at sea by Canada, which again is a major step forward to have the coastal state have the ability to board another member's vessel on the high seas and carry out an inspection.
Senator Mahovlich: Iceland has been successful. They are not members of the EU. They do not want to be members of the EU. Do they police their area? How do they keep the other countries away?
Mr. Hage: Iceland and Canada both have 200-mile zones. I believe we still allow a limited amount of foreign fishing, but you can check with the fisheries people. We have allowed in the past, under licensed Canadian foreign vessels, fishing in the Canadian 200-mile zone. That now seems to be eliminated. As far as I know Iceland has exclusive rights to its 200-mile zone and does not allow foreign fishing.
Perhaps the Icelandic fisheries officials will tell you how they manage their particular regime. They have been successful, I understand. This is just anecdotal information I have as to how they manage their fish stocks. I cannot give you details on that; I am afraid I am not in a position to respond.
Senator Mahovlich: We should look into that.
Mr. Hage: Iceland is a member of NAFO, however, and plays a role in that organization. It was actually the first Western country to become a party to UNCLOS as well. They are party to the international instruments, as is Canada. They were helpful to us in the negotiation of the UNFA regime of the straddling stocks regime. They adhere to the same instruments as Canada does, with the exception of the Law of the Sea Convention where we are not yet a party. With respect to the management of their zone and their success I believe the best people to ask are the Icelanders.
Senator Mahovlich: We should, because I think they keep a nice balance there.
The Chairman: That might be an interesting point to follow up on.
Senator Phalen: I share Senator Mahovlich's frustration. We have listened to this discussion and other discussions about the 200-mile limit for some time now. It does not seem to be going anywhere. I can understand that for anyone negotiating for Canada at NAFO, or wherever, it must be a frustrating session.
I do not know where this will end. If we say that we cannot unilaterally extend our limit, and that we have to negotiate with NAFO, my first question is: Are the fish stocks in the Flemish Cap fished by Canadian vessels?
Ms. Saunders: I believe there is some of that but, again, that question would be better directed to the Department of Fisheries and Oceans.
Senator Phalen: My next question would have the same answer. How important are those stocks on the Flemish Cap to Canada?
Mr. Hage: The fisheries department is the best entity to respond to that question.
Senator Phalen: Do you believe that the NAFO convention can be amended, or has it ever been amended?
Ms. Saunders: I am always cautious about saying ``never.'' However, I believe that it has not been amended. Can it be amended? Yes, it is legally possible to do so. Whether on a practical level it is possible to do so, there is often reluctance among contracting parties to undertake an exercise that can take a fair amount of time and effort of that degree.
Senator Phalen: There is the frustration. My question is: Do we favour multilateral agreements to the point where our fish stocks are gone?
Mr. Hage: It is a question of why the fish stocks are gone. There are a variety of reasons. You could invite the Department of Fisheries and Oceans to review a number of those reasons. I do not think it is necessarily fair to say NAFO is to blame for the disappearance of fish stocks. I appreciate there is obviously a frustration on your part with the particular situation we face. However, I do not think it is a fair statement to say this is the fault of an international or multilateral organization.
We are working hard to improve these organizations. As I said, UNFA is a way of achieving some of these possibilities, particularly dispute settlement. NAFO does not have a dispute settlement provision; UNFA does. Once the EU is a party to UNFA, the way is open to resolve disputes through the dispute settlement provisions of UNFA. However, I do not think NAFO will bring back fish stocks that have disappeared.
Senator Phalen: As I understand the straddling stock issue, the fish go beyond the 200-mile limit and when they go that far, they are being caught internationally. Canada has no protection with regard to those fish.
Mr. Hage: They are being caught unless it is illegal fishing, which is what I mentioned. The majority of them are being caught by TACs that have been set by NAFO members. There are observers on the vessels. There is patrol aircraft. There is a range of items in place to try to ensure that those stocks are not overfished but fished on the basis of the NAFO rules. As I mentioned, NAFO is not yet perfect. There are certainly changes we would like to have made to that organization, and Mr. Chamut outlined those changes to you when he appeared before you in November.
I would encourage you not to, if it is my place to say this, abandon regional fishing organizations as a tool. It is not just for Canada. It is a tool that is being used around the world. We have problems with fish stocks off our coast. It is a worldwide phenomenon, for whatever is to blame. I do not know whether it is the declaration of the 200-mile limit and too much fishing in those areas, or if it is high seas fishing states that have too large vessels. I do not know what the core reason is. This problem is not only Canada's problem; countries around the globe are facing it.
That is why it is interesting to see Spain, for instance, a country with whom we have had problems in the past, now holding conferences on illegal fishing. They realize — and they are huge fish consumers — that the fish is starting to disappear or the prices are so high because of the illegal fishing that they are cutting the market for the legal fish that is caught. It is something that I think behooves us to work with other countries in resolving this problem.
Senator Cochrane: Would you elaborate on the international cooperation and talk specifically about the negotiated trade-offs?
What evidence did you find in Spain in regard to its interest in a cooperative approach to combating the problem that we are having here in Canada?
I would like you to comment on the process of inspection and boarding of vessels that are alleged to have illegally caught fish. My information is that these vessels are notified one day in advance before the inspectors board the ship.
My last question relates to the application of fisheries instruments on the role of flag states. I want to quote you a specific incident.
Last February, the Russian trawler Olga refused Canadian inspectors' permission to board while she was in waters off Canada's East Coast. One month later, she docked in Conception Bay, South Newfoundland. When the inspectors finally boarded, they found 49 tonnes of cod that was illegally caught. As we were told last week, some of the cod on these European plates are about one to two inches long.
Olga eventually left the Newfoundland port without being charged and with the illegally caught cod still on board. At the time, it was said that Canada was essentially powerless because, under NAFO rules, it is up to the home country of the vessels to lay the charge.
Would you be able to walk us through that situation, please?
Mr. Hage: Your first question is often posed to diplomats: What deals have you made?
Senator Cochrane: I said trade-offs.
Mr. Hage: You are not referring to any particular situation.
Senator Cochrane: We were told about particular ones last week by one of our witnesses.
Mr. Hage: I am not sure what those are. I can only speak in general terms.
If you were asking somebody from Foreign Affairs, who has experience in negotiation, ``Do you give things up in negotiation?'' the answer is yes. I am talking in general terms, not just about fish. I, at least, have never seen an international negotiation where you get everything you want, because somebody on the other side wants something as well. There is always some sort of trade-off.
If the trade-offs at end of the day are unacceptable to you and you had to give up too much in your mind or the minds of your superiors or of Parliament or the government, then you do not sign the convention, or you do not agree.
I am not sure what the witness told you last week about the trade-offs. They happen in international negotiations. If anyone thought that Foreign Affairs or any other department gave up too much, I would have trouble seeing how we could sign and ratify such an agreement because I think the reaction would be fairly strong.
Senator Cochrane: One of the trade-offs mentioned last week is an agreement to build a car plant in Canada if Korea was granted a quota on the Grand Banks.
Mr. Hage: That is something that I could not comment on. I have no knowledge of that at all.
Canada is a major trading nation. We are highly dependent upon trade. Generally, the approach is not to link issues. I have no knowledge of the car plant for a quota. Frankly, it would surprise me, but I have no knowledge of it.
The second question you asked concerned evidence of Spain and its cooperative approach. The evidence I would point to is this recent conference. I am not here to advocate Spanish law or practices — others with more expertise in that area could do that.
Spain recently passed two laws related to foreign fishing and the behaviour of their own fishing vessels. They passed a law in March of 2000 that set out fairly strict penalties for vessels caught fishing in an illegal manner. This has been followed up by November 30 by a Royal Decree on this IUU fishing, which uses the penalties put in place in March of 2000 as the basis for challenging or for punishing its captains and vessels that are accused of fishing.
Last spring Spain was informed about a vessel that was caught with, I believe, Greenland halibut that had been illegally caught at the beginning of its voyage toward the NAFO regulatory area. Spain told the vessel to immediately stop its fishing and head for inspection in a Spanish port, and that vessel was prosecuted. I am doing this from memory now. I do not have the name of the vessel. The Spanish authorities wanted Canada to know their action in this particular regard, that they would not tolerate that type of illegal activity.
I am not saying that every vessel from Spain is being dealt with in that manner or that every vessel from any other country fishing in the NAFO regulatory area is being dealt with severely by its flag state. The evidence is, in hosting this conference in Santiago, that Spain wanted to demonstrate its approach to these particular questions. As I mentioned, Spain now finds itself subject to this illegal fishing because it undermines the efforts of its own fishermen who are fishing legally as well as undercutting the prices for fish that are caught in Spain.
Senator Cochrane: They did not worry about undermining the Canadian boundaries when we were in trouble. It is only now that they are in trouble that they are more concerned about it. Am I not right?
Mr. Hage: I suppose the answer to that is nothing is static. Countries move and change their position. Perhaps, we are a bit more enlightened in Canada than others in other parts of the world about how these questions will be dealt with.
As far as the fishing incident with the Olga is concerned, I will ask Ms. Saunders to speak to that.
Ms. Saunders: I want to provide a few additional points to that because the Olga, which was originally arrested in Canada for reasons of pollution infractions, was actually an example of cooperation between NAFO parties. Subsequent to the vessel departing Canada, it put in in Iceland where, at Canada's request, it was the subject of a dockside inspection. Following that, also at Canada's urging, the Russian state that flags that particular trawler ordered the vessel from the NAFO area and removed its licence to fish.
That is an example of cooperation between the NAFO parties as it actually should be.
Senator Cochrane: It was fishing illegally, was it not? Did it catch cod illegally?
Ms. Saunders: That is correct. It was punished as a result by its flag state, Russia.
Senator Cochrane: Do we know how they were reprimanded?
Ms. Saunders: Their licence to fish in the NAFO regulatory area was removed and they were ordered not to return to the area.
Senator Cochrane: That is the one ship?
Ms. Saunders: That is the Olga, yes.
Senator Cochrane: Since then, have we seen any other Russian ships in that same area?
Ms. Saunders: I would understand that there are most likely Russian flagged vessels fishing in the NAFO regulatory area. There is the idea inherent in the NAFO regime that one does not visit upon the transgressions of one vessel those same penalties upon all vessels in a fleet. However, in terms of what the exact activities of vessels may have been in the NAFO regulatory area, I would again refer you to the Department of Fisheries and Oceans.
Senator Hubley: Charlottetown's The Guardian recently printed an article that distressed the fishing community of Prince Edward Island. It had to do with an allocation of cod under the Canada-France agreement. Could you show me on the map where that cod would be coming from?
Mr. Hage: I am not sure. I have not seen the article. There would not be any references in the agreement to Prince Edward Island.
Senator Hubley: No, it was not for Prince Edward Island. Prince Edward Island fishermen were concerned that there would be a fishery of cod that would impact eventually on them. I am not even speaking of what is happening to Newfoundland.
Mr. Hage: There is a boundary settlement between Canada and France, dealing with the boundary on Saint-Pierre et Miquelon, which is called ``the baguette.'' This extends down to the 200-mile limit. There is also a fishing agreement on the management of fishing stocks that straddle that baguette. I am not sure of the specific reference to this article in the Charlottetown paper as to the Canada-France agreement on this cod fishery. Again, it is a question that might be asked of DFO. We can make further inquiries as well and advise the committee of any results.
I am not aware of that particular reference.
Senator Hubley: In the setting up of agreements between countries as they pertain to fisheries, are there other countries that also have the ability to fish in waters within a certain limit of the East Coast, given the fact that we know that Newfoundland is facing yet another possible fishery closure because of lack of stock?
Mr. Hage: The Department of Fisheries and Oceans generally manages these agreements. To my knowledge, there are no foreign vessels currently fishing in the 200-mile zone. They would only be allowed to fish if there were a surplus of the particular stock. There was a time a number of years ago when Canadian fishermen were not catching all of the stock or were not interested in particular stocks, and foreign fishing vessels were allowed under licence to come in and fish those particular stocks. I am not currently aware of any foreign fishing presence. Again, that is a question that Fisheries and Oceans could answer more definitively.
Mr. David Ehinger, Deputy Director, Oceans Law Section, Department of Foreign Affairs and International Trade: There is a Canada-France fisheries agreement whereby the French have certain rights to fish within our zone. They are very much constrained. I can tell you that when we have our bilateral meetings with the French once a year, they usually go away very unhappy.
The other main case where we have foreign boats in our exclusive economic zone is on the West Coast. That has to do with the albacore tuna fishery, in which case we also have the right to fish within the U.S. 200-mile zone. However, that is a very specific case and a very specific fishery.
Senator Hubley: Was I correct in understanding that Canada has not ratified its membership in UNCLOS?
Mr. Hage: That is right.
Senator Hubley: There are a number of countries that belong to that organization that are looking to extend their 200-mile limit to about 300-some miles. Is that correct?
Mr. Hage: I am not aware of that. This convention that I have mentioned, and the one that celebrated its twentieth anniversary yesterday, is a comprehensive convention. They call it the Constitution for the Oceans. It deals not only with fisheries but also with the continental shelf, marine pollution, marine scientific research and dispute settlement. If you are a party to this convention, the rulings are fairly clear. The limits of jurisdiction are clear. They are set out in this convention.
Additionally, if you are not party to this convention, customary international law indicates that you are bound by the limits, so the 12-mile territorial sea and the 200-mile economic zone limits are part of customary international law now. Any court that was adjudicating that — the International Court of Justice at The Hague, for instance — would recognize those as universally agreed limits. I am not aware of any state that is talking about extending its jurisdiction beyond 200 miles.
Senator Hubley: Is there anything within your booklet on the scope of UNCLOS? Is there a section to allow countries to review that?
Mr. Hage: UNCLOS can be amended. There are amending provisions in the convention. During the 10-year period of negotiations these limits were hotly contested — not so much the territorial sea but the 200-mile economic zone or fishing zone. There is no appetite now to revisit those limits.
I mentioned that Peru, for instance, was going to ratify the convention. Peru wanted not a 200-mile fishing zone but a 200-mile territorial sea and it did not get that from negotiation. As a result, it did not agree with the convention in the end. It has now changed its mind. Twenty years later, the spokesman at the twentieth anniversary indicated that they now recognize that the 200-mile EEZ is part of customary international law and it is now prepared to ratify the convention. It has gone to its legislature for ratification.
There is another example of a state that had an extensive claim at the end 1982, which has now withdrawn that extensive claim and has recognized the international regime.
Senator Watt: With respect to being outside the 200-mile limit, I believe that there is zoning that takes place. There is a numbering system within that zone. When in international community becomes a player within that zone and a permit is issued to an international vessel, what happens if that vessel is extracting shrimp and happens to go outside of that zone? What happens then? How is that policed?
Mr. Hage: To rephrase, you are asking what happens when there is a vessel fishing beyond the 200-mile limit on the high seas, and it is in violation of a NAFO TAC?
Senator Watt: That is correct.
Mr. Hage: The response would be that the flag state would prosecute that vessel on the basis of the information that it obtains through a port state inspection or as obtained by an inspection at sea. It would be the responsibility of the flag state to prosecute.
Under UNFA, those that are parties to UNFA recognize that a coastal state, such as Canada, can board and inspect and, under certain circumstances, bring the vessel to port if the flag state refuses to respond to a request to inspect. UNFA gives the coastal state more power in that area to ensure the conservation and management rules are being respected.
Senator Watt: What happens in the case that there is a similar argument taking place within the 200-mile limit? What is the difference between the international instruments that are being used to enforce the laws? What is the real difference between what takes place outside of the 200-mile limit and within the 200-mile limit?
Mr. Hage: Within the 200-mile limit, the coastal state has full authority over the stocks that occur within that 200- mile limit. We determine who fishes within the 200-mile limit.
Senator Watt: In that case, it would be Canada.
Mr. Hage: That is correct.
In the current situation, as far as I know, it is only Canadian vessels, and they are all inspected when they return to port. We have enforcement regimes and vessels out there. We have patrol aircraft. Canadian vessels are watched as well. If there is a foreign incursion into that 200-mile limit, that vessel can be arrested.
Senator Watt: The reason behind my questioning on this is that when you look at the map before us, there seems to be a way in and out within the 200-mile zone. How do you manage to police that?
Mr. Hage: I do not want any confusion over this chart. I circulated this map merely to show the juridical limits of the continental shelf. The 200-mile limit, which is marked here on the chart, is the limit of the EEZ. That is our fisheries boundary, in a sense. Canada's rule applies within that 200-mile limit as far as the EEZ is concerned. The lines outside of that are there for to show the extent of our continental shelf and the different lines that have been put in place to determine, under article 76 of the convention, the outer limit of that continental shelf. They are not there to indicate that there is a fisheries area that we can claim jurisdiction for beyond the 200-mile limit.
Senator Watt: I would imagine that, under the international agreement, there is a limitation set within the agreement itself in terms of how much they can extract or how many vessels can operate within that 200-mile limit.
Mr. Hage: Within the 200-mile limit, it is up to Canada to determine the regime and how many vessels we wish to patrol. It is our decision. Beyond the 200-mile limit, there is the Regional Fisheries Management Organization, NAFO, which, through negotiation, sets the total allowable catch for the different stocks that it manages. That is the difference. Within the 200-mile regime, it is Canada. Beyond the 200-mile regime, it is NAFO.
Senator Watt: Knowing what happened in the Newfoundland area, where the cod stocks that we relied on for a number of years became extinct, I am worried about what is happening on the high seas. We are already affecting the high seas in a big way. The species do not recognize boundaries. There is that report. I am concerned that in the future there will be a gradual shift from the concentration of high seas into the 200-mile limit, and after the 200-mile limit, it will be further and further into coastal areas. I am suggesting that what has happened in Newfoundland could also happen in the high Arctic. That is the reason for my question.
You talked about trade-offs in the negotiations and being able to negotiate on the international trade issue. On one hand, for example, our neighbours are not at times generous enough to allow us to trade what we need to trade and harvest from the sea. I am referring to the Marine Mammal Protection Act. I am sure that you have been involved in that legislation. The people from the North are prohibited from marketing the seal product in any shape or form according to the Marine Mammal Protection Act. Do you think there will be a possibility to open that discussion?
The Chairman: We may not have time to get into that discussion.
Senator Watt: This is important. We have witnessed what happened in the Newfoundland sector. We are moving in the same direction in the high Arctic. I should like to hear your thoughts in that regard. How do we deal with that matter? Do we begin to consider regulating that part of the area for future and Canadian purposes?
Mr. Hage: Without getting into the detail, the same regime applies in Canada's Arctic as it does off the East Coast or West Coast. In other words, in the Arctic we have a 200-mile EEZ that Canada declared a number of years ago. We also have a continental shelf in a portion of the high Arctic that extends beyond the 200-mile limit. We have a boundary between Greenland and ourselves. You are quite right that there is more fishing activity in that area than there has been in the past. NAFO has set TACs in the areas that are in the area that bounds the boundary between Canada and Greenland as well as south of Greenland. The international regime, NAFO, is there in those areas that are beyond the 200-mile limit.
We must be careful. I think the honourable senator is correct that we must ensure that these stocks that were plentiful maintain their abundance. As stocks are depleted in other areas, we must be attentive to the fishing in this area. This is again a responsibility for DFO, but I have every indication that they are very much aware of the fishing needs and the fishery in that part of Canada as well.
The same regime that I have outlined for the East Coast and for the West Coast applies to the Arctic as well.
Senator Watt: Do you have any comments in regard to the Marine Animal Protection Act?
Mr. Hage: I have done some trade law, however I am not here to talk about trade law questions. If I made a comment, I would have a whole division down my throat.
Senator Watt: I know how sensitive that subject is.
The Chairman: Senator Watt tries to get allies the best way he can.
Senator Adams: At present we see Russian vessels coming up to fish turbot. Who makes that decision, DFO or your department?
Mr. Hage: I am sorry; I did not get the question.
Senator Adams: We have Russian vessels that catch turbot. There are quotas this year in the Nunavut area, which are somewhere around 8,000 metric tonnes of turbot and some shrimp. No foreigners are allowed to come into the area. Who makes that decision? Is it your organization or does that come from DFO?
Mr. Hage: If you are referring to within our 200-mile zone, that would be done by a licence from Fisheries and Oceans.
Senator Adams: I got it from DFO.
Mr. Hage: You should talk to Fisheries and Oceans.
The Chairman: You noted that NAFO is a better organization than it was 10 years ago. My first reaction to that comment was that we have fewer fish so naturally the organization must be easier to run.
Mr. Ehinger: The institution becomes more and more difficult to run with fewer fish, not easier.
The Chairman: We could probably get into a debate on this subject. If there are fewer fish, obviously there is less interest from the NAFO areas. Those people who do come are crews from countries where people work for $25 a week. It is an entirely different ball game than it was 10 years ago. It may be less attractive to fish in those areas and that is why the organization may be that much better off. That suggestion could lead to an interesting discussion.
You may have sensed by questions from honourable senators, that many people are passing their frustrations along to this committee. Both the fishing community and industry have a strong sense of the devastation that may be occurring off the East Coast of Canada, however it appears that the decision makers do not have that same sense of urgency. We must come up with a creative solution to the problem.
There is a concern that in a few years there may not be any fish. NAFO may become irrelevant if there are no more fish. That is the sense of urgency that we are getting from our folks at home. Therefore, we are trying to come up with a panacea or magic bullet that may not exist.
Does UNCLOS have anything to say on fish habitat?
Mr. Hage: UNCLOS recognizes fish habitat in the context of the threat posed by pollution on marine life. It sets out general rules in regard to pollution.
The Chairman: I would like to focus on that subject without going into pollution. Let us say that we are in a NAFO area and something comes along drags around the seabed. I will ask you in the way the question was posed to me. I am the messenger.
Someone drags something along the seabed hurting the habitat for the sedentary creatures down there, which belong to Canadians. Let us say we start damaging the habitat in which these creatures exist. We have boats coming in with all kinds of nasty things that damage this sea life. Could the case not be made that these items destroying the seabed should be removed?
Mr. Hage: I have heard that question before. It disturbs the marine fauna that exists on the ocean floor that might feed these fish stocks. This is an intriguing case to put forward. Fish habitat is not dealt with specifically in the UNCLOS convention. However, the notion of trawlers destroying the sedentary species that are there and under Canada's jurisdiction is something about which we could make a case.
I should add, as well, that there is an International Tribunal for the Law of the Sea in Hamburg, which is part of this convention regime. It has had 11 varied cases, some of them dealing with boarding of vessels and the flag state objecting to the nature of that boarding. The tribunal provides a forum for one party's complaint about the behaviour of another party. The tribunal adjudicates these complaints. That is another avenue that is open.
Without having studied the issue, the connection that you have made between the sedentary species and disruption of their habitat through a trawling method is a reasonable approach.
The Chairman: That would lead to another question. Canada, in this case, would be bringing in the argument that draggers are damaging the ocean floor. We would have to practice what we preach, would we not? We would then have to say, if draggers are damaging the ocean floor, obviously there should be no more draggers.
Mr. Hage: In any approach in international negotiation, consistency is always a good approach.
The Chairman: In October, the Spanish Marine Research Institute in Vigo, Spain, indicated that the decline in cod stocks on the Grand Banks and Flemish Cap was caused by environmental changes, not fishing pressure.
Given that this is the kind of scientific research that is being proposed to the Spanish authorities, are we not heading for more trouble?
Mr. Hage: I am not aware of the scientific advice that Spanish authorities are getting. As you know, the question as to why the cod stock disappeared has yet to be definitively answered. I am not sure whether that would necessarily lead the Spanish government to take any particular action on the Grand Banks of Newfoundland.
The Chairman: Why is the EU at this point not a part of UNFA? Could it be the fact that UNFA would provide Canada and other nations the extra tools to be able to possibly control what the EU is doing in the NAFO area, that it would provide us with a method to challenge overfishing? Could that be the reason UNFA is not being ratified by the EU countries?
Mr. Hage: In fact, thirteen member countries, including Spain and Portugal, of the European Union have ratified UNFA. They have held back on depositing their instruments of ratification until they can all do it together. Getting these 15 parliaments to go through the process of ratification is what is taking the time.
As I mentioned, that is now largely done. An Irish representative told me that they expect their Parliament to complete the process either by December 17 or early in January. We are making inquiries of Greece, which is the last country.
I do not think it is fair to say that there is some EU scheme or process involved in delaying ratification. It is merely the 15 parliaments and the time that they have taken to go through the ratification of UNFA. There is every expectation that they will ratify next year.
The Chairman: You indicated in your brief that ``the timing of Canada's ratification has been influenced by difficulties with the fisheries portion of UNCLOS...'' What are the fishing difficulties that Canada had with UNCLOS?
Mr. Hage: The provision that was the large difficulty was article 63 on straddling stocks. This was referred to again by an American official going back 20 years as to the efforts by Canada to get a solid straddling stocks regime in the convention. We were not able to do that. This was a question between coastal states and flag states and the powers of each.
Under UNFA, we have seen a movement on the boarding inspection provisions towards a coastal state. That has occurred in the last 20 years. At that time, there was an unwillingness to do much more than article 63, which was basically a duty to cooperate, but without any teeth or elaboration. As a result, we launched the process of getting the United Nations fishing agreement on straddling stocks and highly migratory species, which has filled in the gaps of this particular provision of UNFA.
That particular provision of the Law of the Sea convention was the problem. We had some difficulty trying to get a solid management regime for the straddling stocks. Largely, those concerns have been alleviated through UNFA.
Senator Cook: I am trying to understand the role of Foreign Affairs in this maze as it relates to fishing. I am trying to focus my thoughts where they belong, which is on foreign overfishing.
Let me give you a case scenario. A foreign trawler gets a license from DFO to catch fish ``A'' or ``B,'' lands at a Canadian port, off loads it and trans-ships it to a country where it is processed reasonably inexpensively. Does Foreign Affairs have any role in that transaction?
Mr. Hage: The vessel would be licensed by DFO.
Senator Cook: I understand that.
Mr. Hage: It would be fishing, presumably, because it is licensed by DFO to fish within our 200-mile zone.
Senator Cook: It filters through the Canadian border and is processed in India or China or wherever the labour is relatively cheap. Would the Department of Foreign Affairs have any jurisdiction?
Mr. Hage: In the scenario you have outlined, it is a trading relationship. The ports would be opened, presumably, to this vessel. It has been licensed by DFO to fish in our waters and to land its catch. The catch is transferred. It is processed someplace else. I do not see why we would be interfering with that process.
Senator Cook: Is that a good trading agreement or not?
Mr. Hage: Again, we are getting into the trade area. You might wish to invite someone from our trade law division to speak to you. The WTO has certain rules with regard to the freedom of trade, and Canada certainly abides by WTO rules. It is very much in Canada's interest to do so, because we are a major trading nation and a great deal of our prosperity depends on trade. Everyone loves the notion of processing in our own country and exporting abroad. No one is terribly interested in seeing their exports going to be processed someplace else and then importing them. If everyone tried to do that, the trading system would simply break down. There must be a certain degree of liberalization of trade in the world, and the WTO has established those rules.
Generally, Canada benefits from those rules. That is a very general sort of response to your question. Canada abides by the WTO and has prospered because of the WTO regime, which has allowed Canadian exports to be exported abroad without interference.
Senator Phalen: I have a question about seals. I have asked the question before and I have been told that there is no scientific proof that seals are eating the cod. The fishermen do not believe that — they believe seals are eating the cod and the capelin upon which the cod feed. Are we offending anyone internationally by culling our seal stocks?
Mr. Hage: Again, you mentioned my involvement in the Canadian mission to the European Union. My response is a general one. Whether it is justifiable or not, there has been an international reaction against culling these stocks. That is not necessarily based on law, rules or anything like that. Certainly I have witnessed in Europe a reaction to that seal cull.
Senator Phalen: I guess my question is whether countries are reacting to that. I know there are protest movements and that kind of thing. Is that why Canada is not culling its seal stocks?
Mr. Hage: That is not the responsibility of Foreign Affairs. I am really not able to answer a question about the seal cull is concerned and the methods or quotas given for such.
Senator Phalen: Let me ask it another way: Are there any countries that are protesting Canada culling the seal stock?
Mr. Hage: I would have to research that. From personal experience, I know about the reaction of NGOs or people in Europe. As far as countries are concerned, I would have to investigate whether countries have protested that particular action.
To proceed further than I should, perhaps, on this question, what I have seen in Europe is that it is the importers of Canadian fish products who are pressured. You saw that in the U.K. where Sainsbury's encouraged a boycott of Canadian products because of objections about the seals, for instance. The effectiveness of that is to — quite illegitimately — ban a Canadian product, probably in violation of WTO rules. The Canadian exporter gets very concerned about that. This is done largely by public opinion, or by NGOs and companies that sell Canadian products on their shelves. That is the difficulty with which we are sometimes confronted. It is not a government-to-government relationship.
The Chairman: I have a comment about the seals. I understand they will target the fisheries minister's area to get people to vote against it, because he might support the seal cull. He is probably shaking in his boots right now, knowing West Nova.
I have one question before you go. Senator Baker raised the question yesterday in his recognition of the 20th anniversary of the Convention on the Law of the Sea. He made reference to 20 nations in the world who have notified the United Nations Commission on the Limits of the Continental Shelf that they wish to extend their jurisdiction to 320 miles. France was the first and the Soviet states did it just last month. I imagine he meant the Russian Federation.
Do you know whether these states are in fact trying to extend the limit to 320 miles?
Mr. Hage: As I mentioned, there are different regimes that deal with the offshore. There is the 200-mile limit where we have jurisdiction.
The Chairman: He might not be referring to fish. He might be referring to petroleum or something else.
Mr. Hage: My guess would be that he is talking about the resources of the Continental Shelf.
The Chairman: He did not mention fish.
Mr. Hage: Then that would be beyond the 200-mile zone. That would be the commission to which I referred you. There are 21 members on this important commission. The coastal state makes a submission to the commission and the commission makes recommendations to the coastal state about the limits of its shelf. The Russian Federation has made a submission in this regard concerning the Arctic, which is of interest to us. As I indicated, Brazil will likely be the next country to make such a submission.
The Chairman: I would like to thank the witnesses for appearing before us tonight.
The committee adjourned.