Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 5 - Evidence, April 29, 2003
OTTAWA, Tuesday, April 29, 2003
The Standing Senate Committee on Fisheries and Oceans met this day at 7:09 p.m. to examine and report from time to time upon the matters relating to straddling stocks and to fish habitat.
Senator Gerald J. Comeau (Chairman) in the Chair.
[English]
The Chairman: I would like to call on Patrick McGuinness from the Fisheries Council of Canada.
I will not read your bio, Mr. McGuinness, because everyone knows you from your many appearances here. I wonder if you would give us a brief overview of your colleague, Professor Douglas Johnston. I think it is his first time before a committee. Welcome. We are fortunate to have two people so knowledgeable on the subject matter we are discussing.
Mr. Patrick McGuinness, Vice-President, Fisheries Council of Canada: It is always a pleasure for the Fisheries Council of Canada to come forward before this committee to express our point of view. It is a particular pleasure tonight, with Professor Douglas Johnston as my colleague here.
I will present a bit of an introduction and try to set the context, if you will, for his comments. First of all, Fisheries Council of Canada is a trade association. We represent about 130 companies that grow, harvest and process fish and seafood products throughout Canada. Our member companies are in Atlantic Canada, British Columbia, Ontario, Quebec and Nunavut.
The issue tonight — straddling stocks — has been a high priority for our council for many years. It has been a key issue, particularly for Atlantic Canada. Our first real venture on this issue was in 1987 when we produced this report in-house, called ``Foreign Overfishing: A Strategy for Canada.'' Basically, that was to try and establish some type of long-term strategy for both the Government of Canada and the key provinces. The key provinces involved right now are Newfoundland and Labrador, Nova Scotia and, to some extent, New Brunswick. At one point in time, when there were more bountiful stocks, Quebec had aspirations with respect to straddling stocks as well.
In 1990, in what we call the Northwest Atlantic Fisheries Organization, NAFO, there were consistent and recurring objections presented by the European Union with respect to majority decisions taken by NAFO regarding the conservation of straddling stocks. The European Union would simply reject those majority decisions and set their own unilateral quotas. That really started to destabilize NAFO. At that point in time, we entered into a contract with the International Oceans Institute of Canada, which was housed in Dalhousie, to produce this report called ``Managing Fisheries Resources Beyond 200 Miles: Canada's Options to Protect North Atlantic Straddling Stocks.''
This is an excellent document with respect to the history of the evolution of international fisheries law. One of the important things that it says is that the United Nations Convention on the Law of the Seas, UNCLOS, was like reading a book with the last chapter missing. That last missing chapter was the fact that UNCLOS says nothing substantive or tangible with respect to the management and conservation of straddling stocks.
It was due to the recognition of that deficiency, and to some extent this document, that Canada lead a campaign to establish the United Nations Fisheries Agreement, UNFA, a fisheries agreement in terms of how the UNCLOS should be implemented with respect to straddling stocks and highly migratory stocks.
That seminal document, to a certain extent, moved us into the mid-1990s when, in Canada, we thought everything would be under control with the establishment of UNFA.
Now, we have not stopped with this type of document. Recently, we commissioned the Dalhousie Law School to do another report because situations have been developing in the North Atlantic Fisheries Organization, NAFO.
Two significant meetings happened. The first was in February 2002, in Helsinger, Denmark, and following that was the meeting in September 2002, in Santiago de Compostela in Spain. What occurred there is that NAFO rejected key conservation measures that Canada felt were absolutely essential for the conservation of turbot or green halibut. What was being recognized was the resurgence of the type of overfishing of quotas, and fishing for stocks that are under ``moratorium'' by foreign fleets.
Coming back from those types of meetings resulted in considerable debate and disagreement between the provinces involved, particularly in Atlantic Canada, the federal government in terms of the Department of Fisheries and Oceans and the industry. In terms of the Fisheries Council of Canada, we had a board of directors meeting. What can we do? Can something be done to bring more focus to this issue? The suggestion was to have an independent, third party, scholarly group, such as the Dalhousie Law School, to develop a common understanding of the issues, the problems, and, perhaps, certain options that could be the foundations of strategies. Our sole objective was to bring parties together to see if there was an opportunity for the industry, and the governments of Canada, Newfoundland-Labrador and Nova Scotia, to develop a consensus direction with respect to short-term, medium-term and long-term strategies.
Fortunately, that type of approach won support. We got financial support and commitments from the Department of Fisheries and Oceans, the fisheries department of Newfoundland-Labrador and from Nova Scotia.
Basically, we did the contract. Professor Johnston and colleagues at Dalhousie law school worked with a steering committee comprised of members from the Fisheries Council of Canada, including members from the province where your chairman resides and emanates from and also members from the governments of Nova Scotia and Newfoundland and from the Department of Fisheries and Oceans. That report is in the process of finalization. We should be publicizing it in May.
Once that report is public, the next step is to have the document as input into the round table forum by Minister Thibeault of the Department of Fisheries and Oceans on the better conservation and management of straddling stocks. This round table of industry and experts from the law community, individuals from communities and individuals from the various provinces, began in February 2003, and will continue in June, and through the summer months.
Hopefully, the result will be a consensus of direction with respect to this issue of straddling stocks in terms of a short-term, medium-term and long-term strategy.
That is trying to set the context as to what the Fisheries Council of Canada is involved in. We tried in this issue to be a facilitator.
We have had some excellent investigators and researchers from academia who consented to present not just an academic report but to work with industries and governments to come up with this report.
One of the three main contributors, I am happy to say, we have with us tonight, Professor Douglas Johnston. He is an international legal expert who is regarded highly throughout the world. He has initiated a number of sessions to deal with legal issues and bring forward new thought. He is currently the Emeritus Professor of Law at the University of Victoria. He is also an Adjunct Professor of Law at Dalhousie University. Professor Johnston will give a summary of the findings that he and his colleagues have developed and some of the recommendations that he will be presenting to the Fisheries Council of Canada, and to the governments of Canada, Newfoundland-Labrador, and Nova Scotia.
Mr. Douglas Johnston, on behalf of the Marine and Environmental Law Programme, Dalhousie University: It is a great pleasure to be here on behalf of my colleagues. You will have detected a Scottish accent. I lived most of my adult life in Canada, but have not been able to shake off my Scottish accent. I hope it does not add to the problems of the evening.
Of course, we meet tonight in sobering circumstances, in the long shadow of continuing adversity in the offshore. It is worth recalling that many problems of our fisheries on the East Coast of Canada occur within limits of national jurisdiction. Indeed, most of our harvest comes from these areas. However, straddling stocks that obtrude into the high seas are also important for Canada, and this is no time to underestimate the value of these stocks on the outer edges of the Grand Banks.
Perhaps you have received a copy of the outline that I have brought with me. It represents my aspirations of what I will try to cover quickly in the next half-hour or so, in the hope that some of these issues will be of more interest than others and may suggest questions and discussion in perhaps greater depth.
Let me start, as the outline suggests, with the problems of the NAFO system. Let me begin with some preliminary thoughts. NAFO is one of a category of regional fishery management organizations of which there are many around the world that came into existence or acquired a new life at the advent of the exclusive 200-mile economic zone. It was known at that time, 30 years ago or more, that there would be problems between the coastal states, the nearest adjacent coastal state on one hand, and the distant fishing states that make up the rest of the membership of these organizations. It is not at all surprising that we are suffering from difficulties inherent in the nature of things.
It may be that some of these problems are not soluble without a new approach to Canadian fishery diplomacy.
The agreement that Mr. McGuinness referred to, the straddling stocks agreement, UNFA, is now gathering ratifications around the world. As that new international agreement takes bite, problems of implementation will have much to do with the future of NAFO and the other regional fisheries management organizations.
We will be talking mostly about NAFO tonight. NAFO is simply one of a family of organizations. There may be opportunities now for Canada and other members of NAFO to meet with the memberships of these other organizations to compare notes on how all these organizations might go forward in the age of UNFA, with a view to modernizing, updating and improving their organizations to make them more effective.
Most Canadians that we have met recently perceive NAFO as not having functioned very well. Why is that? Is it possible the reason is that these organizations, such as NAFO, have never been structured or mandated in such a way as to function effectively? Resources have simply never been invested in these organizations, NAFO or any others, to get close to optimal level of operation.
The literature on these organizations is clear and unambiguous. They are decentralized to a fault. To function at all to any degree, they depend entirely on the willingness of the principal member states to invest their national resources in the organization. The secretariats of these organizations are weak, given essentially no authority whatsoever. These organizations are run by the member states and, therefore, realistically, by the most politically powerful and diplomatically powerful of the member states.
A sense of realism suggests that it would be very surprising that if NAFO had come up to optimistic expectations, how well it would function.
In the case of NAFO, in particular, suboptimality is unavoidable because of the geopolitics and economics of the northwest Atlantic fisheries. In recent years, since the birth of NAFO, replacing the International Commission for the Northwest Atlantic Fisheries, ICNAF, the Soviet Union has disintegrated, and several former parts of the Soviet Union, such as the Baltic states, are now independent states and independent members of NAFO. This is significant from the point of view of the effectiveness of NAFO, because the Soviet Union in the older days was quite a highly disciplined state, and the central government of the Soviet Union in Moscow at that time was able to impose a fairly high degree of discipline on its fishing fleets. Whether it always chose to or not is another question. However, it had the capability, being a commandist political system. With the disintegration of the Soviet Union, there is less discipline now between the governments and the fleets flying their flags than previously. The geopolitics has changed.
Russia, the successor of the Soviet Union, is, in fact, one of the best disciplined of the fishing states that make up the membership of NAFO. It is not the villain of the piece. Add to that, on the geopolitical side, that many or most of the former parts of the Soviet Union and several of the former members of the Warsaw Pact, such as Poland, that are now truly independent members of the NAFO, are lining up for membership in the European Union. In these circumstances, it is politically unrealistic to expect them to disregard entirely the strongly held preferences of the European Union.
The question of whether this will pose serious diplomatic problems to Canada in the future, as more and more of these states become members of the European Union, is a difficult question that we might discuss later. It can be argued both ways. However, there is also an economic problem at the heart of NAFO. The truth is, if we leave aside Canada, Spain and Portugal, most of the rest of the membership of NAFO simply have not sufficient economic stake in the fisheries of the northwest Atlantic Ocean to wish to invest heavily in the expensive business of high-seas fishery management and conservation. From a cost-benefit point of view, there is not the motivation to spend much money on compliance with the measures adopted by NAFO.
Nothing can be done about the geopolitics. Nothing can be done about the economics inherent in the fishing situation in the northwest Atlantic. Therefore, Canada will have to develop ingenious and perhaps original ideas to apply a significant diplomatic pressure on NAFO in the coming years. Canada probably cannot do it on its own. We have to find ingenious ways of attracting like-minded states first within the membership of NAFO, and for certain issues outside the membership of NAFO in the international community.
These are preliminary thoughts. Let me tick off, quickly, some of the structural deficiencies of NAFO.
One might say that the decision-making system is open to challenge.
The idea that Canada has leverage on NAFO to influence decision-making might be a little over-optimistic. The truth might be that Canada has less leverage now than previously. First, Canada has few, if any, juicy carrots to offer to other members of NAFO through permitting access to surplus stocks that Canada has, quota and allocation, either inside or outside the 200-mile limit. There are virtually no surplus stocks in existence that add up to carrots that Canada can offer as it might have done in the past.
On the stick side — negative sanctioning — denial of port entry is not a very effective leverage, if it ever was; it is zero as far as European Union is concerned, and not much better than zero as far as most of the other members of NAFO are concerned.
It will be an uphill battle for Canada to effect significant change within NAFO, but it is our purpose to try to suggest the range of options available.
With non-parties, in theory, there could be states coming along and adding to the problem of overharvesting of certain stocks outside 200-mile limits, such as the straddling stocks on the outer edge of the Grand Banks, states that might not yet be considered obligated to become a member of NAFO. There is new international law evolving on that, as I will mention later.
However, the non-parties problem is diminishing. The stocks that might attract them commercially are either unavailable now or less attractive from an economic point of view. Some people like to attribute the diminution of the problem of the non-party states to Bill C-29, now in the form of amendments to the Coastal Fisheries Protection Act. It may be true. It is difficult to tell, of course, whether that has played its part in discouraging new entrants into these fisheries. Whether Canada should, or in some circumstances might feel obliged to, repeal is a subject we can come to later.
Third, the quota allocation system at one time was perhaps controversial, but this, too, is diminishing as a problem inside NAFO. The increase of moratorium policy approaches the various stocks, species and areas in the northwest Atlantic and attempts to remove the sting from that criticism of NAFO.
What about the objections procedure? In our report, we discuss at some length the nature of the problem. If we want to pursue this in a little more detail later this evening, we might want to examine certain aspects of the objections procedure of NAFO.
Although it continues to be of concern to Canada, that it is possible by using the objections procedure for dissenting minorities within the membership of NAFO to get out of their obligations under the measure adopted by the majority, this is not happening as often as it did in the past. I believe the European Union has not used the objection procedure since 1991. It has been used recently mostly by former members of the Soviet Union, the Baltic states and by Iceland and Denmark for certain stocks.
It is a concern maybe for the future, according to some scenarios, that it may come back to haunt Canada. Therefore perhaps, we should try in the spirit of reform to find ways of improving that system through a set of formal guidelines to be adopted by NAFO, either in conjunction with dispute settlement issues or otherwise, that might clarify the responsibilities of states exercising the right under the objections procedure. If this is of interest to members of the committee, we might come back to this and also to the question of dispute settlement.
Let me go on now to the need for modernization. We should remember that NAFO is a child of the 1970s. Much has changed in the field of international fisheries and international law since then. The last 30 years have been almost revolutionary in their impact, evolving very rapidly. In particular, from now on every serious analysis of diplomatic options, responsibilities and rights, vis-à-vis the membership of NAFO, can no longer be dissociated from the straddling stocks agreement. The two go together. It is salt and pepper now.
The straddling stocks agreement to which Canada is a party, as is the United States by the way, is an effort to remedy the deficiencies of the Law of the Sea convention with respect to straddling stocks. We can talk about that at greater length.
When we talk about modernizing NAFO, we are usually talking about incorporating into NAFO some or most of the principles set out in UNFA that are not in the original NAFO convention, or we are talking about incorporating compliance procedures and other features of UNFA either through direct incorporation or at least by an agreement on the part of the member states of NAFO to bring their modes of operation more into line with the expectations created by UNFA. We may want to talk about that later.
Finally, some people argue, certainly in scientific circles, that some of the weaknesses of NAFO might be attributable to deficiencies in the scientific input. We detect a variety of opinion on this; it depends who you talk to. No one, as far as I know, says the scientific input into NAFO is poor. There may be too little in the way of reliable data, or maybe the wrong kind of data, so you get different schools of opinion within the scientific community and you certainly have different views among the fishing industries that make up the membership of NAFO on what expectations they have of the scientific advisors. I would like to come back to this later.
Briefly now, in regard to problems of non-compliance — getting to the heart of the problem — some people argue the problem is not the structure of NAFO so much, although there are difficulties such as non-compliance on the part of several of the members of NAFO with the obligations created by decision-making within NAFO.
Let us start with the most basic. Under what we call general international law fisheries, the flag state is still dominant, flag-state jurisdiction. That is true for marine pollution purposes and for fishery purposes in the Law of the Sea. Today, we still see a tradition of primacy for the flag state in terms of jurisdiction over such matters as enforcement. As long as that tradition of flag state primacy prevails, it is terribly difficult for a country like Canada, a member of NAFO, to force the other flag states that make up the membership of NAFO to meet expectations of an international organization such as NAFO. In other words, NAFO as an international organization does not have any authority over enforcement and compliance of the flag state.
However, on the other hand, there is now a trend away from flag-state dominance to coastal-state and port-state functions in the matter of inspection, compliance and enforcement.
Also, if we look at UNFA, the straddling stocks agreement that is now in force, much of the language in the agreement spells out heavier responsibilities devolving on the flag states than you could detect by reading the language of the NAFO convention. We are in a period of transition. For many years yet, there will still be unanimous agreement among the states that flag states still have some kind of prior role, but that is no longer unchallenged.
We might hope then that reform that is attributable to poor performance by the flag states in terms of enforcement and compliance may abate in the coming years as the flag state tradition begins to decline somewhat.
What are the problems of non-compliance? You will find a list in our report, but for the purposes of clarity this evening, so that we are looking at the same kinds of problems of non-compliance, here are seven or eight. First is harvesting in excess of quotas, that kind of non-compliance. Second is harvesting of moratoria species, species that have been designated as under moratorium by agreement within NAFO. Third is the high level of by-catch because the assumption now must be that over and above incidental catch within the nets of untargeted species, there is unfortunately evidence to suggest deliberate targeting of what are called non-entitled fish. Some states are suspected of deliberately catching other species as a way of circumventing their obligations. Use of illegal gear is another example of non-compliance. The misreporting of catch is another problem, as well as the discarding of undesired catch and the catching of juvenile, undersized fish.
It is good to spell them out, although all these problems are familiar ones. None of them are new, and taken together in combination with one another, we see the dimensions of the problem. Some people looking at this list of non- compliance problems are drawn to the conclusion that the NAFO enforcement scheme is inadequate if that is the size of the problem of non-compliance. We are still dependent on flag states for effective follow-up to complaints about non-compliance and arrive at rather pessimistic conclusions as to what we might expect of NAFO.
The observer program was an attempt to remedy the lack of data on the breakdown of the system. The idea is that every vessel licensed to fish in the straddling stocks areas must have on board one individual who spends the whole time with the crew throughout the entire voyage. The individual monitors fishing operations, ensures that the catches are properly recorded, makes sure that the appropriate gear is used and quota restrictions are respected.
How to evaluate the observer system successfully, which provides this kind of information on which the NAFO members are supposed to act, is a problem, given the difficulties. The individual on board — the observer — has to maintain a 24-hour watch over a number of weeks at sea, which is a human impossibility. Also, some or perhaps many of these observers are not as neutral and independent as they are supposed to be in theory. Sometimes they are even listed as crew members and have divided loyalties, shall we say. This is no way to run an observer system.
The inspectors who come in, supplied mostly by Canada and the European Union, I believe, board periodically and meet with the observer. What they can do depends to a large extent on the cooperation between the observer on board and the inspectors who have done the boarding. Many criticisms come from the fact that we do not have ideal cooperation between observers on the one hand and the inspectors on the other.
The reports of the observers are not written normally at least until the end of the voyage. By the time they get to the home port, it is too little and too late very often for effective follow-up and prosecution if the data should suggest that is appropriate. Moreover, the reports of observers are admissible as evidence in Canadian courts, I believe, for the purposes of prosecution but not at the moment in the courts of the other members, such as the European Union members, and so there are fairly fundamental flaws in the observer system. These are some of the problems, and we may want to come back to a few.
Second, the UNCLOS framework, as Mr. McGuinness said in his introduction, is not very important any more in the implementation of the international fisheries with respect to high seas stocks such as straddling stocks. The reason is, as he indicated, that the fishery provisions of the Law of the Sea convention are vague, eclectic, thin and no longer represent the new approach to international fishery management. These substantive limitations in the convention have to be looked at in light of UNFA, the straddling stocks agreement that came into existence entirely because of the insufficiency of the fishery management provisions of the Law of the Sea convention. You have to take the two together from a Canadian point of view. We are, after all, a party to UNFA and not a party to the Law of the Sea convention, but from the point of view of substantive provisions on international fishery management responsibilities, it is UNFA that is far more important now than the Law of the Sea convention. What is there is too vague to be a foundation for high seas fishery management on its own and therefore the critical role of UNFA is indisputable now.
This will raise questions about the pros and cons of ratification from the point of view of straddling stocks, and I will have more to say about that later. At this point, there are other important reasons for ratifying the Law of the Sea convention that are unrelated to the substantive provisions in that instrument on fishery management for high seas stocks.
I wish to make a number of points about UNFA. It is a very complicated agreement. It is full of technical difficulties, full of uncertainties about how effective it will be because it is new, and it is designed to be a long-term experimentation in the implementation of new ideas, principles, procedures and sanctions that would not exist otherwise. Let us look then at some of these features now introduced into the world of international fishery management on the high seas.
As far as objectives and principles are concerned, this is crucial for the future of NAFO because NAFO will not work unless it is modernized. It will never get any better, probably worse in fact, unless a serious and successful effort is made to modernize it. I will not go into too many of these principles. I will mention two by way of example that represent new thinking. First, the precautionary approach to fishery management is a familiar feature of international environmental law now and is moving into the field of international fisheries law. Second, what is called the ecosystem approach to fishery management is challenging traditional ideas of how you should go about managing a fishery.
I will mention these two and if we want later maybe we could pick up on other objectives and principles of UNFA from the point of view of whether they are suitable candidates for incorporation into NAFO.
There is compatibility-type language in UNFA that suggests that international regional fishery management organizations like NAFO responsible for management of high seas stocks such as the straddling stocks must be consistent with the measures adopted by the adjacent coastal state within an exclusive economic zone. Whether that really adds up to anything different from the consistency language of the NAFO convention is something lawyers sometimes like to argue about, but I do not think we should go into that now. The point is whether you talk about consistency on the one hand or compatibility on the other. Either way, since these words are synonyms according to the Oxford English dictionary, the point is that the new ethos emerging requires harmonization. Harmonious and cooperative management system is what we are trying to do and we should not stumble over words too much.
Of course the role of organizations like NAFO gets a great deal of attention in the UNFA instrument. One of the major purposes of it is to provide institutional means to put flesh on the skeleton of the provisions in the Law of the Sea convention.
In my opinion — and I hope we can discuss this later — this is a tremendous opportunity for Canada to reassert international leadership in ocean affairs. I spent my entire life in this field. As a result, after 40 years, I have the strongly held opinion that Canada has lost almost all the credibility we built up in the golden period of UNCLOS III diplomacy, not just in fisheries but also in Law of the Sea generally.
Canada certainly had one of the three or four most impressive delegations for 15 years at the Law of the Sea conference where it was the chief beneficiary in the world, bar none, perhaps, of UNCLOS III. Much had to do with the virtuosity of our most brilliant diplomats. There is an opportunity now, if the political will is there in this fair city of Ottawa, to re-establish Canada as a leader state in Law of the Sea in general and of course fisheries in particular.
I like to think that ratification of the Law of the Sea convention should be debated now in conjunction with the opportunities that ratification would create for Canada, not just to have a place at the table but to participate in the global process, which we could discuss in detail, but to rediscover leadership opportunities. I do not use rhetoric. When I say that I mean it literally.
We have ideas in our report of what form international leadership might take, if the Canadian government were willing to assert itself. I do not mean exclusively in NAFO. I mean more broadly in terms of the review of Law of the Sea generally; certainly the Law of the Sea convention but other important treaties as well, perhaps in terms of revision of some of these instruments.
We could discuss some of the ways in which Canada could reassert leadership.
Compliance enforcement, of course, is still at the heart of the UNFA instrument, Part VI. It is quite innovative, putting a lot of responsibility on flag states, more than ever before, with respect to rogue ships, ships with a bad record of persistent violations over the years. It is in Canada's interest, obviously, to pursue this part of its orchestrated diplomacy. That is closely tied in with the willingness of the parties to UNFA to assert themselves within that new system.
The same could be said about dispute settlement, which we might want to discuss later and which, too, is a complicated matter. The pros and cons of what Canada would gain on the one hand, what Canada might lose on the other by being obliged to go to court, arbitration or some other recourse with another state, is difficult to discuss in the abstract unless we know what type of dispute it would be, who the other party would be and so forth. Of course, Canada as a party to UNFA is already committed under UNFA, not the Law of the Sea convention, to use the mandatory dispute settlement procedure brought into UNFA from the Law of the Sea convention.
That brings me to the options. I will go over them quickly now and perhaps in more detail later.
First, we have a lot to suggest in our report on operational improvements to NAFO that may or may not be realistic. It is difficult to know what is realistic in elusive areas of fishery diplomacy.
I pointed out at the very beginning that some problems of NAFO that inhibit what Canada can accomplish diplomatically as a member are things we cannot do much about. Getting the political will of the other states to address operational improvement ideas may not be easy. The European Union will be extremely powerful and influential, obviously, in NAFO, both on its own and through individual members of the European Union that are members of NAFO.
Let us pick on three. Blacklisting was tried before in NAFO. It did not get far, probably because not enough effort was made to make it successful. Thus, there must be motivation and political will or nothing can get done, of course. What is suggested is that persistent violators of NAFO management conservation measures in the straddling stocks areas might be listed under what we call a ships of shame policy and made amenable to discipline, sanctioning, and even severe punishment once they get on that black list. The violators we are talking about are the vessels themselves and not the states whose flag they fly. It is a way of getting to the heart of the problem by going to the vessels, not the states. It is an unorthodox way of thinking for international lawyers who normally think in terms of states.
There are models, after all, of successful attempts to blacklist fishing vessels. The best-known model is in the South Pacific. The South Pacific Forum Fisheries Agency has been successful in not just listing persistent violators, rogue vessels, but nailing them by depriving them of the entitlement of being licensed or relicensed. The blacklisting goes with the vessel itself, regardless of who owns the vessel, who charters the vessel, who is the captain and who are the crew. It goes with the vessel, so there is no escaping a blacklisting system if it is done properly, as South Pacific has shown.
It would apply to non-NAFO vessels as well as NAFO vessels. If it were done properly and effectively, it would help to deal with the non-state problem, as well as the delinquent member problem. It could be extended to prohibit landings all over the world. It depends on how much money and political capital you are willing to expend on a truly effective and punitive system. It would require publicity to be given to all ships of shame in their own country, especially. It could even become universal.
There are other trends in the shipping world, the marine pollution world, where experiments of a somewhat similar kind are reasonably successful. In our report we suggest that we, the proponents of a really effective and intelligent blacklisting strategy, could go to the marine insurance industry and suggest to the underwriters that they look closely at the credentials of an applicant for coverage in terms of its record in compliance or non-compliance with the measures adopted by regional fishery management organizations. Again, how realistic this is, who knows whether the insurance industry would prove to be accommodating or not? We are not entitled to an opinion until it is tried so some nerve is involved.
Concerning penalties, one of the problems is that the penalties are too variable. If you can ever get a culprit vessel into a national court and expose it to prosecution, a penalty comes down. In some countries, such as Canada, there can be severe penalties imposed. In other courts of other members of NAFO, if you could ever get these vessels into their courts, the penalties are much lighter. We are suggesting that a committee of experts might be set up by NAFO representing the different member states to develop strategies in operational detail with which they could live and that this be a part of the agenda of this committee of experts of NAFO.
The likelihood is that this would be one thing on the agenda, to compose compatible penalties so that there is not such a wide gap between the heaviest penalties in some national courts and the lightest penalties in other national courts. Reduce the gap between the two. Publicity would be key to these improvements, of course. It might be the time in this age of transparency to suggest that it would be helpful to Canada to encourage NAFO to open up its sessions to the public, NGOs and other people of interest. In this age of environmental concern, here is a case where two constituencies that are not normally bedfellows have different reasons for wanting to cooperate with each other because the environmental NGOs, if they were observers of NAFO meetings, might be willing to use their considerable expertise in using the media for their own purposes. That would also serve the interests of the Canadian fishing industry that admits to being not very successful in using international media for their purposes. For somewhat different reasons, they both have to be effective in the use of media to expose NAFO to the light of day, as it were.
We use the term ``reforms'' to mean bolder ideas, probably ideas that are sufficiently bold that they would require either amendment of the NAFO convention, or if they are really bold, radical renegotiation of that instrument.
The first idea that we suggest be looked at by a committee of experts that could be set up by NAFO at Canada's urging would be to consider the pros and cons of weighted voting. Weighted voting is a voting system where not all states have an equal weight in the decision-making process. The weight given to your vote depends on the depth of interest the state has in the matter at hand. Therefore, members of NAFO that have relatively little at stake in the fisheries of the northwest Atlantic, that are peripheral, trivial or limited in their interest, would not have the same weighting in the scales when they cast their vote as a country like Canada. Weighted voting is a familiar feature in the world of shipping of the International Maritime Organization, IMO, and under various marine pollution agreements under IMO. There, it is done by tonnage. In the world of shipping, the weighted voting system works so that the state under whose flag the highest tonnage sails at sea, has more weighting when it casts its vote than those members with the least tonnage.
If you apply that to the world of fishing, is it a good idea for Canada, for NAFO in the fisheries context? We would have to think about what criteria to use. It probably would not be tonnage of the fishing vessels. Would it be tonnage or value of the landings or a mixture of both? It would be in Canada's interest to make it value of landings because of the nature of Canadian stocks, which are high-value species, and we may have to make deals with other members of NAFO on that.
That is something that we could not go into at length, but we think it is an interesting idea. If you connect this idea of weighted voting within NAFO to the kind of diplomacy required to get agreement on this, we are inclined to the view that Canada might try even harder than in the past to find common cause with Spain and Portugal. As states that often are thought of in competitive terms, historically, it might be smarter for Canada to pursue — this is not new for Canada, by the way — the bilateral diplomacy option within NAFO.
I believe — although Mr. McGuinness could give us more information about it — that there have been several efforts within recent years for the Canadian industry and the Canadian government officials to visit Spain and Portugal for goodwill visits, if we could call them that. This is not a totally new idea, but if we think of the weighted- voting proposal as the focus for bilateral diplomacy between Canada and several members of NAFO, this might be effective.
The argument by economists is that of the member states perhaps only Spain and Portugal can be compared realistically with Canada in terms of what they have at stake in the future productivity of the stocks of the northwest Atlantic. A lot of people have told us that some or even most of the other members of NAFO are quite capable of being cynical about the northwest Atlantic fisheries, the so-called region-hopping scenario. Some of them are quite opportunistic and may think they need have only a short-term interest in preserving the productivity of these stocks. If they fish out the stocks, they will jump to another region in the world, as a distant fishing state and go on from there and, frankly, not care about the future of the stocks in the northwest. If you pursue that slightly cynical view of the real world, it would be in Canada's interests, logically, to try to effect a coalition with Spain and Portugal as the countries with the most economic interest in the future productivity and sustainability. Then, go after the United States, and maybe one or two European Union states, too, that for environmental reasons would feel obliged to show some sympathy with Canada on fishery conservation issues that are also environmental issues.
If you try to imagine the future coalition that could be put together, it comes from two sources. It comes from those that come closer to matching Canada's economic stake, as with Spain and Portugal, and, on the other hand, it comes from the environmentally sensitive states of the European Union and perhaps other states of members of NAFO. Cleverness would be required to put together something that is economically sensible and environmentally ethical at the same time. I am not saying this is easy, but some intelligence has to be brought to this, as well as imagination. Then this coalition-building within the membership might have some reason to result in something, such as approval of weighted voting.
What else might come out of that? As I said earlier, the UNFA provisions from the straddling stock agreements are what you focus on for the purpose of modernizing NAFO. NAFO, a child of the 1970s, is now an adult. It is time to grow up. It is time for NAFO to grow up. It is not a child any more. It is time to mature. It will mature through the incorporation of some or several or most of the features of UNFA. There is no other way to grow up. That is the one and only road of maturation. If time permits, we might go into these adult responsibilities that come out of UNFA that would run to Canada's advantage, of course.
With respect to the secretariat, we have tried this idea in our report. If you look, first of all, at international organizations that are political in nature, the agencies of the United Nations system, all of them, have one thing in common. They have very strong, formidable secretariats running them. These secretariats are so strong that there is a constant struggle for power between them and the delegations that come from the member states. That is healthy, in my opinion. That is what you want.
The little battle goes on all the time between secretariats and member states. You do not have this in any fisheries organization on the planet. Member states run everything. I cannot think of a clear, obvious and impressive exception, and certainly not in the family of regional fisheries management organizations such as NAFO. There is no real secretariat. Perhaps there may be in name, but functionally there is not. They have no money, power or research staff; they have nothing.
All the resources going to NAFO come from the willing and capable member states. Do you acquiesce and then say, ``That is the way it is,'' with a shrug of shoulders? Or with a bit of imagination, can we imagine an effort through coalition-building led by Canada in NAFO to bring into place something that has never existed before — an empowered secretariat that would involve a willingness on the part of member states? Who knows whether this is realistic. You try it, go for it and see. The member states possessing the resources would have to be willing to make over these resources to some extent to the secretariat.
The Chairman: I wonder if I might interrupt. I had advised my members that the meeting would be about an hour and a half. I know they are chomping at the bit to ask questions.
Mr. Johnston: Perhaps I will make a final point then — to think about the possibility of a more centralized type of organization, to remedy that particular weakness maybe with a professional staff brought in, maybe on secondment from the Food and Agricultural Organization, FAO, or other external global organizations that would be impartial, independent of the member states, and proud of their professionalism. This would be new thinking, as far as I know. I have never seen this written anywhere, but this might be tried.
Perhaps I could leave other things, such as economic system-based management and buyout policy, for questions later, as well as the longer-term options of unilateral actions of one kind or another.
Senator Cook: I should tell you that I am a Newfoundlander. I have been totally immersed in trying to understand what has happened to the fishery in my province. None of us, especially on my all-party committee, believe that it had to be this way.
I want to put something in front of you. When I hear you talk about all the elements and the organization of the process to take care of the stock, to manage it and to ensure that it is there, the overriding principle is consensus.
At the moment, I am sitting here listening to all these wonderful organizational pieces that you put out that sound logical, while I am having to deal with no consensus between my province and the Government of Canada in respect to whether or not that fishery should have closed.
There are those of us at home who would argue that because of the importance of the straddling stocks and the need to protect them, that the fishery was closed around the shores of Newfoundland so that the fisheries minister could go to NAFO and say to his counterparts, ``I have done my bit for the conservation and the management process.''
If that is the case, that is a terrible price for a people to have to pay in the name of management and in the name of all the elements that you have put in front of me. I would like your opinion on that hypothesis.
Mr. Johnston: You will bear in mind, of course, that the three of us who have written this report have not been involved over the years at close quarters. Maybe we were engaged partly for that reason; maybe we come with a degree of innocence, but perhaps with different ideas. We are aware of the fact as international lawyers that NAFO is simply one of many other organizations, or certainly of several. I admit there is a uniqueness about NAFO, certainly from the Canadian point of view. There is a uniqueness about Canada as a fishing state, for that matter.
A lot of problems will not weigh within the Canadian framework of getting onside the federal government or getting onside two or more different agencies of the federal government on how to deal with problems of this kind, of getting on the same side the Government of Newfoundland, the federal government and the industry.
The purpose of the process that resulted in this report was to bring together all these people in perhaps a different way. We had a closed round-table discussion in St. John's a month ago or more where all these people were in a room. My view is that it serves a useful purpose to make this a more regular event. My main argument would be that Canada could move forward in a more unified fashion in the international context rather than if we simply look at the internal problems nationally. I see the ratification of the Law of the Sea convention as an opportunity for Canada to offer leadership in international arenas that could serve Canada's interests, where we could offer new ideas with respect to the entitlement of the coastal state vis-à-vis distant fishing states.
It may be, as has happened in other contexts, that problems of getting national coherence within one state are diminished by successes externally. It is sometimes futile to look at it just in Canadian terms as a problem of getting everybody onside. It is part of the reality, admittedly. Perhaps it is the bias of an international lawyer like myself.
An example that I have lived with for 40 years is that CIDA, by involving Canadians internationally in problems of economic development under CIDA's mandate, gives to Canadians perceptions and insights about shared problems that then can be brought back home. Ways can be suggested to improve similar situations back home in Canada. That may sound a little vague, but that is my life experience. There is a great deal of learning to be done internationally. I am not favourable to ideas of packing up our tent and walking away from NAFO. I can understand the frustrations. It has had a terrible price for Newfoundland. I can understand that the frustration level must be incredibly high now in Newfoundland.
It may be my personal bias, but I think that the best way into this is by seeing the problem as international as well as national, and staying with NAFO. Walking away from NAFO, which I heard some people in Newfoundland suggest, is not a solution to this problem, in my opinion.
The system as it is now is unacceptable. We have no choice but to think through carefully ways we may improve the system, perhaps along the lines we suggest or in other ways.
If the Canadian delegation to NAFO achieves any success at all in coalition-building within NAFO in some of the ways we have already identified, that will bind together the delegation, and it will bind together the federal government and the Newfoundland government and the fishing industry more than anything else could. Canada is a country that always seems likely to come apart a little bit at the seams, at least in the rhetoric, but also in the reality of political life in Canada. We tend to break away into regional sentiments when we have difficulties to face, more so than the Americans do. The Americans are a much larger entity than we are, and yet they have this irritating genius of being able to pull together patriotic sentiment when the country is seen to be suffering from serious problems. We tend to make fun of it sometimes, some of us, but I think it would be nice if Canada could find reason, through patriotism, if you like. Patriotism is not meaningful until you go into the outside world. Patriotism does not mean anything if you look at everything internally as a national problem. Patriotism becomes a meaningful sentiment only when you get outside into the larger world. I see the problem of improving NAFO as something you have to look at in the international context. If it were not to be NAFO, something like NAFO would have to be reinvented sooner or later. I cannot imagine how there could be any improvement in the management conservation resources out there if there was not something like NAFO there. That is the international arena in which Canada would come together and put all its collective energies into ingenious diplomacy in conjunction with some like-minded states.
Senator Cook: Forgive my impatience and my frustration, but we have studied the element to death. In sitting here tonight, I have seen Mr. McGuinness hold up two reports. I listened to the round table, the forum that was held in Newfoundland, where no consensus was given or even sought. I am wondering why.
I like your idea about the strong secretariat, because you are talking to me about an organization that meets only once a year. I mean, when in God's name will we get down past the paperwork and the ideas and the idealism and do something about it?
We are at a crisis stage now because there is not much left. If we believe the scientists, if I have to accept that the fishery around my island waters is no more, that all we have is out there, can you offer some kind of a window where we can get down to business? Of course, it is my country. What does Canada need to do? How can this committee impress upon them the need to begin?
Mr. Johnston: Perhaps Mr. McGuinness would be the more appropriate person to deal with this. I think he has a much better perception of how this report might be used in the coming months and years and whether it might result in something significantly different from the past.
Mr. McGuinness: This is an excellent question. What we captured out of this report was that UNCLOS was like reading a book with the last chapter missing. We needed to finish that chapter. The concentration, at that point in time, was to develop a United Nations agreement with respect to straddling stocks. That was the springboard. To a certain extent, we all felt that would solve our straddling stock problem. We did that. UNFA placed the responsibility for straddling stocks within organizations such as NAFO.
From Professor Johnston's report, what we have to do now is develop the third generation of regional fisheries organizations. We took from that and developed UNFA, and we put responsibility in organizations such as NAFO. You exactly described the problem. NAFO and regional fisheries organizations are children of the past. They meet once a year and deal with paperwork.
From this new report, I see that we have to take that same type of energy that Canada had with respect to going for a straddling stock agreement and identify the essential characteristics and powers and responsibilities that a regional fisheries organization should have so that the straddling stocks are protected.
Professor Johnston identified a number of issues. NAFO is an organization of 15 or 16 countries. Yet, within that organization, the Canadian representatives representing the communities that you live in, representing the communities of Nova Scotia that are economically and socially dependent upon those straddling stocks, have the same weight in terms of voting as a country such as Latvia, which has no history and no immediate dependency on that. That is wrong. We have to get people to understand and change.
The history of international fisheries, so far, is for long-distance fleets and high-seas nations to devolve some portion of their sovereignty. We have to continue to push that button. We have to get those countries to realize that they really have to go the next step and devolve that sovereignty to organizations such as NAFO. We have to make sure that organizations such as NAFO have the type of tools to implement good conservation regimes and actually live up to the aspirations and hopes that we placed in them with UNFA. Now, in the year 2003, we realize we created the legal framework, and we said, ``Okay, pass it over here to regional fisheries organizations.'' We never gave them the power to actually skate down the ice and score the goal. They do not have the wingers. They do not have the centremen. They do not have the defencemen or the goalie. They have the ice and the playing field but not the tools to go from Point A to Point B.
The Chairman: You may be interested in knowing that one of our great hockey players will be an observer at the next NAFO meeting in September. Frank may be able to give them a few pointers on that.
Mr. McGuinness: Good. We hope so.
Senator Cochrane: Professor Johnston, I must admit that you have given us a lot of food for thought in a concise and organized way.
I want to ask you about the ``B'' section, flag-state tradition. You mentioned the dominance of that tradition, and it still persists. I wanted to get your comments on a recent example that we have had in the Province of Newfoundland on the vessel called the Olga. This vessel docked in Newfoundland with a full load of illegally caught cod. The flag state removed the vessel's licence to fish in NAFO waters. Who knows how effective that warning was? Was it effective in regards to that country?
Could you elaborate on modern alternatives to this flag stage primacy with regards to enforcement? Are we moving away from this approach at all? From what Europe is saying, we are not. Am I right?
Mr. Johnston: It is a little complicated because it is not just logic; it is sentiment too. There is a strong sentiment in the international community that we must still give primacy to the flag state. On the other hand, the international law community, as distinct from the shipping industry or fishing industry, is coming around to the view now, at least in the Law of the Sea community of international lawyers, that the days of the freedom of fishing on the high seas are numbered. Although freedom of fishing is still in the text of the Law of the Sea convention under the high seas section, that is 20 years ago. The Law of the Sea convention, like NAFO, was also a child of the 1970s and here we are 30 years later, or 25 years after the end of these negotiations. The change is extraordinary, partly for environmental reasons, partly for fishery harvesting and overfishing reasons, and partly now because of the security threats of violence at sea and terrorism. We are moving into a new age now, which is not seen in any international agreement, but is just around the corner, when it will be conceded that, for fishery, environmental, pollution and security reasons, the world can no longer have the same degree of faith in the ancient principle of freedom of the high seas.
We are in an age of interdiction. There are various reasons that are now being given, but are not yet reflected in treaties, that enforcement vessels might be permitted to intervene more and interdict foreign commercial vessels on the high seas that are suspected of either violations of international law or of creating an intolerable threat of some kind. If you talk, as we did recently, to people aware of the military movements in the San Remo manual, as it is called, it is now seen to be the future of high seas that, for these various reasons, there can be boardings and inspections that would never have been suggested by any international lawyer even 10 or 20 years ago. You could now add to the threat of terrorism on the high seas or pollution catastrophes on the high seas, you could argue now that coming up very soon, there will also be eco-crisis. After all, fish are part of the food production systems of the planet and, as ocean food production systems are going down, it is becoming intolerable.
Maybe we are not too far away from it being accepted in international law that, in particular circumstances, it might be justifiable to have some kind of internationally authorized interdicting of corporate vessels for any of these three different purposes, and maybe others. Piracy, slavery at sea and other things come to mind. There is now a growing list of pretexts for interception on the high seas. The danger at the moment, in the fisheries context, is that a frustrated coastal state like Canada might be too quick to do this unilaterally, when the idea is now surfacing in global and regional arenas that there might be some agreed-upon circumstances in which this would be authorized by an international organization. We must be careful in the challenge to the flag-state problem that you mentioned. I would still like to think, as an international lawyer, that rather than unilateral action, which is truly end-of-the-line desperation, it is now becoming apparent, at least in the academic community and perhaps tomorrow in the inter-state arena, that we must rethink freedom of the high seas. However it came out, whether unilaterally or multilaterally, it would add up to the most direct undermining of the tradition of flag-state primacy that one could imagine.
I think we are only a few years away from seeing, in one of these arenas of the environment, fisheries or security, a new type of agreement that would be opened up for signature that would spell out grounds upon which it is appropriate to go beyond the old idea of hot pursuit that has limitations built into it. That may no longer be adequate and there would have to be an international recognition that leaving everything at ``flag state'' is not going to work. There has to be a radical change of thinking in the diplomatic arena.
Senator Watt: I partially understand the predicament we are facing in the international arena, but the question that you have raised is what we do, knowing the fact that we are in crisis at the moment with the fish. Global politics and global economy seem to be moving in that direction. By taking advantage of that, you propose to move towards formalizing the structuring that needs to take place in the international arena. In other words, capture the member states and make them abide by the rules that are set by them.
The question is how you emphasize the importance here now. It is now that decisions have to be made. It is a challenging one, because this is something that I do not think any country, up to this point, has wrestled with, in the way of trying to come up with some consensus that would work as a mechanism to deal with the dispute between member states of an organization.
You are basically saying we need to put some fuel in that organization. We need not only the power to recommend, but actual teeth and power. How do we go about that?
That is what we are wrestling with now and this is well thought out, on your part. I think, along with my colleagues, that we may be able to contribute but someone has to begin the drafting of the set of regulations, rules and procedures. From there, we would have to deal with the Canadian government, which would have to be brought up to date. If they are already up to date, what are they doing about it? They have closed the cod fishery in Newfoundland and have taken away the livelihood of many people.
Are the other member states of NAFO experiencing a similar problem? Are they already depleted in terms of their stocks so they do not look anywhere other than adjacent to Canada?
Mr. Johnston: I will begin with your second question and then come back to the first one. Canada is suffering more than any country in the world in terms of fisheries problems. I really believe that. That is in part because of our traditional dependence, in Eastern Canada, on fishery stocks. The structure of our economy, the size of the country, the remoteness from central government, et cetera have created uniqueness. Canada is the chief victim of complicated problems that have gone awry. That is partly because of natural factors and partly because of human folly, misperceptions and misjudgements. It is extremely complicated.
The next in the line of victims who would have comparable motivation to Canada's to change things fairly radically would be Spain and Portugal. They have always been fishing states, for hundreds of years, and they have an enormous knowledge of fishing. They are sophisticated and I would have thought that part of the Canadian strategy now would be to make unprecedented effort to get those countries onside because they have long range stakes in the future of NAFO. We could call it ``bilateral diplomacy.'' Some visits to Galicia, Spain, have revealed that that region of Spain has some affinities with Newfoundland, in particular. I am not sure if it is a parallel exactly but certainly there is a kind of cross-cultural affinity. That was the reason for the visits. However, a focus was probably lacking in these visits. They were goodwill visits that did not focus on the hard issues, as I understand it. Mr. McGuinness may confirm whether this is correct.
We are suggesting that these efforts to establish preferential relations with Spain and Portugal, which would be in Canada's interest, may bear fruit. We need to have more than just goodwill visits and to focus on the question of how to put together a coalition among these three countries — Spain, Portugal and Canada. They are suffering too, admittedly to a lesser extent but still suffering. The environmentalist side should also be utilized.
Senator Watt: Are our Canadian businesses operating in their waters?
Mr. McGuinness: No.
Senator Watt: But they are, in our areas?
Mr. Johnston: Essentially distant fishing states, they have coastal fisheries that have been affected by the spillage off the coast of the Galicia that has affected their domestic fishery a fair amount. I am not sure exactly how much or whether it is long term but that does not make things any easier for them. Arguably, it makes them even more dependent on the distant fisheries of the Grand Banks and the Northwest Atlantic that have not been affected by that oil spill. Canada could really take advantage of a sense of vulnerability shared with some of these other member states.
I have some personal thoughts that are not expressed in the report because we were asked not to make recommendations.
Senator Watt: Please tell us.
Mr. Johnston: I have some thoughts about how Canada may consider putting together a new strategy. On November 30, which I remember because it is St. Andrew's day, there will be a week-long conference in New Zealand hosted by the Government of New Zealand and Australia under the auspices of the FEO. This conference will focus exclusively on the future of high seas fisheries around the world. Now, if ever the federal government, the Canadian fishing industry and Newfoundland had reason to get their act together, this is it. It is the first opportunity that has ever existed where a conference of this importance is devoted exclusively to high seas fisheries with a view to the future and how to solve the problems of the present. It is an opportunity for radical new thinking.
We mention the conference in our report but what should Canada take to this conference in Queenstown, South Island, New Zealand in the first week of December? That is the question. That is the forum but what package do you take into the arena? I would suggest a proposal, for example, that the time has come for the nearest adjacent coastal state, in the case of straddling stocks, to have an enhanced role to ensure the effectiveness of regional fishery management organizations. That argument spins out into several specific things that we do not have time to discuss now. That could also be where other balloons are flown, experimentally, in Queenstown in December.
For example, Canadians could suggest that the time has come for NAFO to meet with the other regional fishery management organizations to come up with a common strategy than has global significance. If you just talk about NAFO all the time, which has a regional problem, that will not get everyone dancing in the aisles with excitement at Queenstown. However, if you add that this is shared in other regions then it becomes global and everyone ought to pay more attention.
In terms of mechanics, what could be done? We are suggesting a committee of experts. Canada should propose the establishment of a committee of experts within NAFO to look at some of these ideas of operational improvements and reforms of the NAFO system. That would be where the ideas come together. If you were to add to that coalition building that we are recommending, it would not always be just Canada banging the table like Mr. Khrushchev all these years ago, which would not be Canadian behaviour. It would be more Canadian for Canada to be able to say to such a committee of experts of NAFO looking at operational improvements and reform that we think we have a coalition of like-minded states within the membership who are able to agree on some, if not all, of the following package of ideas, whatever may be chosen.
This is the kind of thing that could be tried out first globally in New Zealand and then the schedule of international conferences could be taken into consideration. The obvious ones are in the fall of 2005 where amendments to the Law of the Sea Convention could be proposed for the first time. One year later, amendments to the NAFO Convention could be proposed. You could construct a time scale on a global level — you could sequence things — by starting with Queenstown, New Zealand and eventually attending these global conferences for the reform of international law. That has to be orchestrated and there must be a role for the flutes and the oboes, just like the first violins that play the melody most of the time. It has to be orchestrated collectively by like-minded states.
It would not be terribly difficult to put down on paper. It is relatively easy to put things down on paper, but making the words come alive and to act with political significance is admittedly something else. If there is nothing on paper in the first place, it will not go anywhere.
It begins with recognition by the federal government that would include not only DFO but also DFAIT, Environment Canada and perhaps other agencies that it is essential to have coordination at the federal government level, the provincial governments, especially Newfoundland and with the industry. Perhaps there are even other institutions with which to coordinate. It is necessary not merely to fight national problems, but also to tackle a unified diplomatic strategy for external purposes.
Senator Mahovlich: It sounds like it is quite a problem. You talk about players and orchestra. I think you need a good conductor or referee of some kind.
Mr. Johnston: With a striped shirt.
Senator Mahovlich: Exactly. Did NAFO have anything to do with suggesting that we should stop fishing off our coast? Were we slapping ourselves on the wrist?
Mr. Johnston: NAFO makes decisions that include designation of moratorium species, that is, species that are off limits to help them recover. That is uniform in application to all the members of NAFO.
Your reference to another entity as the conductor or the referee raises the important question of whether there is a third party that is neutral, like a referee, which could help. That is a very difficult question. Is there some help from the International Court of Justice in The Hague? Could some matter be taken there?
This is extremely difficult. First, there must be a legal dispute. The kind of legal dispute could be argued by lawyers. What kind of dispute? Who is involved in it? You have to wait for an acceptance by at least two adversarial states that they have a dispute between them. You may or may not then have the making of going to an international court.
Some lawyers would argue that you would not get clarification of certain important international questions unless you go to a third party such as a court. I tend to be a different kind of international lawyer in this context of fisheries and put more emphasis on cooperative diplomacy. That is illusive, admittedly.
I have been trying to argue this evening that potentially there are like-minded states in NAFO and indeed beyond NAFO, in other parts of the world, that could be approached by Canada. There could be a Canada-led coalition within NAFO to bring pressure to bear on the international diplomatic community pointing out that these problems are getting worse. Fiddling around with little marginal adjustments will not solve the problem.
My view is that incremental adjustments in the way in which NAFO operates will not be sufficient. We are at a period in history where we have to get into, not irresponsible, but carefully thought-out strategies that get out in front of international arrangements by a little bit. It should not be by much because that could be counter-productive.
It would require a lot of careful thought that ought to bring onside the federal government, Newfoundland and the fishing industry. They all have a reason to want to share in an ingenious and intelligent Canadian political strategy that could be sold to other key states in NAFO and outside NAFO.
It would not be easy. However, it would be doable in my opinion.
The Chairman: I have two very brief questions, and I would like the responses to be short, if possible.
Are you aware if Canada has always abided by NAFO recommendations in conservation measures? Has Canada ever filed an objection using the objection procedure of the NAFO convention?
Mr. Johnston: I will turn to Mr. McGuinness to answer that.
Mr. McGuinness: In my recollection, Canada has always abided by a decision by NAFO with respect to a conservation and management regime. We have not used the objection opportunity to deviate from those decisions.
The Chairman: Final question: I proposed some weeks ago the concept of creating an artificial reef by dumping old cars bodies and things of this nature at strategic sites along the nose and tail of the Grand Banks. This is being done off the coast of Africa. Some countries in Africa are doing this to create problems for some European countries that are fishing in those areas but should not be fishing. The artificial reefs clog the trawlers. Has your group given any consideration to this?
Mr. McGuinness: As you say, at this point in time we have looked more at the international aspects. If these types of options are not really practical or realistic, then perhaps you have to look at the wide variety of tools that are available to you.
We have not really explored that to any great extent simply because we want to get this document on the table through legal experts. We want to sit down with the federal government, provincial governments and the industry to see if the proposal is doable and practical. We want to expand the dialogue to include other ideas or options out there.
Not all the answers are legal answers. That is basically what we would be looking for at a round table. Our paper would be one component of the input, but other ideas certainly would be on the table, including the idea of an artificial reef.
The Chairman: Thank you very much. My understanding is that your report is coming out in May.
Mr. McGuinness: Yes.
The Chairman: Will it be made public?
Mr. McGuinness: Yes.
The Chairman: It will not make recommendations. It will be a report —
Mr. McGuinness: It will identify well-explained and well-detailed options including various avenues and possible strategies. From there people can hopefully look at those and identify the best approach.
The Chairman: Thank you both for coming in this evening. We have indeed been privileged to have a briefing on the work that you have been doing.
We look forward to receiving the report, and we thank you again for all the great ideas you have presented this evening. We hope to see you again in the future.
Mr. Johnston: It has been a great pleasure. I am sorry to have spoken at excessive length.
The Chairman: We do have a tool that is used in hockey called ``sudden death.''
The committee adjourned.