Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 12 - Evidence - October 29, 2009
OTTAWA, Thursday, October 29, 2009
The Standing Senate Committee on Fisheries and Oceans met this day at 10:35 a.m. to study issues relating to the federal government's current and evolving policy framework for managing Canada's fisheries and oceans (topic: proposed amendments to the Northwest Atlantic Fisheries Organization (NAFO) Convention).
Senator William Rompkey (Chair) in the chair.
[English]
The Chair: We have some time constraints this morning because we have two blocks of witnesses, so I would like to begin.
I am Bill Rompkey, Chair of the Standing Senate Committee on Fisheries and Oceans. At the moment, we are studying the NAFO Convention, which has been laid on the floor of the House of Commons for a period of time.
We have heard from some witnesses already, and we will be hearing from other witnesses this morning. Hopefully, this will not be the end of our consultation, and we will have more witnesses in the future.
It is fair to say that the issue of certain clauses in the convention are controversial — that is the best way to put it. We have heard from people who are supportive of the proposed new clauses that are written into the convention; and we have heard from others who have had doubts that these amendments are good for Canada.
We have not discussed it as a committee yet; we will at some point, and we will continue to hold our hearings. This morning, we welcome Earle McCurdy, who is a long-time and well-respected president of the Newfoundland Fish, Food and Allied Workers Union. He is well known in our province. Raymond Andrews needs no introduction in my province, as well. He is a former deputy minister and served in other senior posts within Fisheries and Oceans Canada, DFO. Both of them are commissioners to the Northwest Atlantic Fisheries Organization, NAFO, so we would like to hear from them.
We have one hour for these witnesses, and then we go to Minister Hedderson.
Earle McCurdy, Commissioner, Northwest Atlantic Fisheries Organization: We appreciate the opportunity to participate in your consultations on this issue today.
I went to my first NAFO meeting in 1983 and have been to most of the NAFO annual meetings since. They are roughly on a par with having a root canal without anaesthetic in terms of the fun that is involved. I must have done something in a previous life to warrant being subjected to that.
The NAFO regime that is currently in place has not served the people of our province very well. In fact, it has been a disaster. Much of the fabric of rural Newfoundland and Labrador has been seriously damaged — some would say destroyed — not entirely because of the foreign fishing issue, but certainly that has been a major component of the serious damage that has been done to the coastal regions of our province.
I intended to get this copied, but I was pressed for time. I have a graph that shows the European Union's quotas, reported catches and the catch estimated by Canadian authorities over a nine-year period from 1986 to 1994. The EU had quotas totalling 164,000 tonnes. By their own admission, they caught 851,000 tonnes, which is more than five times what they were allocated. The Canadian enforcement authorities' estimate of their catch was 1,360,000 tonnes, which was virtually 10 times what they were authorized to catch. That happened under the current NAFO regime.
One of the issues that has been raised frequently and is commonly discussed in public debate is what is sometimes referred to as "custodial management." No one has ever defined it, but if there is a consensus about what that means, roughly speaking, it is that the enforcement of fishing in the waters outside the 200-mile limit would be coastal state management rather than NAFO management. There are four coastal states in relation to NAFO, the principal one being Canada.
Not one person is not for custodial management. Show me where to sign up. You have to get up early in the morning to get to the line ahead of me to sign on for custodial management, if any government anywhere is willing to tackle that. It has been debated since the 1980s. However, to date, it has not happened.
The Canadian delegation includes various industry representatives who have an interest in the stocks managed by NAFO, representatives of the Newfoundland and Labrador government and usually the Nova Scotia government. Occasionally, the Nunavut government is represented. That would be a group not much bigger than the group around the table here. It is slightly larger when you add the DFO officials. That is the group that advises the head of the delegation, who, in turn, advises the minister.
The choice that was before us at the key meeting in Lisbon, Portugal, in 2007 was not their so-called NAFO reform package that has been debated so much recently versus custodial management because that is a no-brainer. I am sure everyone would vote for custodial management. The real debate, given that no evidence exists that anything is happening toward custodial management, was whether we are better with the current NAFO regime or whether we should try to improve upon the current NAFO regime. The judgment of the Canadian delegation, after a series of meetings and various negotiations of text with representatives of the other NAFO countries, was that, on balance, the proposed amendments, which were also negotiated along with some significant improvements in enforcement regulations, were better than what we have now.
With respect to those allocations, that was in 1986 and 1994. Some improvement has occurred since, but we do not have that level of overfishing now because the world has changed. There is more scrutiny of fishing. Having said that, we still have our share of problems with the fleets that are out there. Therefore, the question was really on the balance.
That fishing by the EU was perfectly legitimate within the current NAFO regulations. The destruction that caused to our fish stocks and to our province was absolutely legitimate under the current regime because of a provision called the objection clause — although "objectionable clause" would be a better way to put it — that allows a country that does not agree with a decision to simply object and set their own. It would be tantamount to me getting stopped for going 150 miles an hour on the Trans-Canada Highway, and a Mountie gave me a ticket and said, "You are only allowed to go 100," and I said, "I object. I want to set my own speed limit of 150 miles an hour," and I get away with it. It would be the same.
That has not been happening in the current regime. Few objections have been filed since the turbot war in 1985. The Danes filed an objection over shrimp; they felt badly done by. Once an objection is filed, the original NAFO regulations did not include a way to resolve a dispute. That was an enormous omission in the original text.
A couple of key things in the proposed reform package appealed to people in the Canadian delegation, including myself, in terms of the balance of considerations. First, a dispute settlement mechanism was introduced in the NAFO regime so that if someone filed an objection, they could not object forever and fish as they like. Second, notwithstanding the comments that I read from others, the change in the voting procedure to a two-thirds vote from a majority vote is an improvement from the point of view of the people whom I represent.
This issue was done a disservice when, first, Minister Hearn claimed and then more recently, to my surprise, Minister Shea repeated that the amended NAFO constitution was tantamount to custodial management. In my opinion, that is absolute nonsense. It is incremental improvement from where we were, to cleaning up some of the shortcomings and being somewhat better moving forward.
Much of the debate recently has been that the current regime has been described as NAFO having responsibility outside the 200-mile limit and that this sort of fortress exists at 200 miles. Then inside 200 miles, NAFO has no say whatsoever, and the Canadian government calls the shots. The two most important management measures in any fishery are the total allowable catch — that everyone is allowed to catch in total — and then the quota shares that fall under that total allowable catch. NAFO sets those inside and outside the 200 miles, on every stock that comes under NAFO's auspices, with the exception of the northern cod stock, where Canada effectively sets the quota. All others are set by NAFO.
There is an esoteric legal debate as to whether, if Canada wanted, without filing a formal objection, they could do differently than following the quota. That is something for the law professors to debate. In the real world, in 30 years of NAFO decisions, with every single Canadian quota allocation put into effect by NAFO, the people I represent have been governed by that quota.
The guts of the argument are around the sovereignty issue. The debate seems to be narrowed down to whether foreign countries patrolling Canadian vessels inside the zone. First, I do not know of country that has a desire to do that. Second, I cannot imagine any Canadian government ever agreeing to that. In order for something to happen in that regard, Canada would have to request it and then vote in favour of the measure that they just requested. Having said that, there is much of concern over it.
I will close my remarks by proposing a simple remedy. To go back to the drawing board and start NAFO reform all over again would take several years before we get back to it. Canada demanded changes, and there were changes to which countries agreed, including Canada; Norway as already ratified them; others are in the process. If we did that, we would be going back to a continuation of the status quo for several years. That is my judgment. However, there are concerns. I am not questioning people's sincerity in making them; so let us find accommodation.
One day, I listened to Minister Shea say that the federal government would have no intention of ever inviting patrol vessels to come into Canadian waters from another country. She said that. The premier of our province said that his big concern was that thing about the patrol issue — the sovereignty issue. The simple remedy that would avoid having to go back and start the process all over again in NAFO is that the Government of Canada and the provincial Government of Newfoundland and Labrador enter into some form of binding legal instrument or MOU whereby the federal government would commit to the Newfoundland and Labrador government that they would not request nor vote for any measure in NAFO that would involve NAFO intrusion into Canadian waters without the advanced written consent of the Newfoundland and Labrador government. I suggested this to Ministers Shea and Hedderson.
I believe that puts the test to both of them. If the Government of Newfoundland and Labrador has an issue and not just something to bet up the feds over, then they should look at that and say that that fixes the problem. They will never agree to that unless there is a clear demonstration that there is some particular measure that would be in our interest to do so, though I cannot imagine what it would be. That would put the Newfoundland and Labrador government to a test as to whether it is really an issue, and to the federal government, it would be a test of the minister's statement that no government would ever intend to do it.
If you never intend to do it, what is wrong with fettering your authority to the extent that you say that you will sign that agreement with Newfoundland and Labrador? We do not believe those issues have any serious foundation in reality, but it would at least leave us out of the vest. They have already said they would not do it. Therefore, you are fettering nothing.
We want to put that issue to bed and get on with real problems because the amount of time and energy that has been devoted to public debate on this issue in relation to others is way out of proportion in terms of the magnitude of some huge problems that we are facing in our industry. That is it in a nutshell. I apologize if I ran over my time.
The Chair: That is helpful. Mr. Andrews, please proceed
Raymond Andrews, Commissioner, Northwest Atlantic Fisheries Organization: I have been fortunate to sit at most of the NAFO meetings since 1979. The added positive is that I have sat there as a federal DFO person, as a provincial representative from the Territory of Nunavut and from Fishery Products International, FPI. I have the drift of all the government agencies and the biggest fish company in Atlantic Canada at the time.
I will not echo anything that Mr. McCurdy has said. Generally speaking, almost without exception, we are on the same page largely on everything.
Was there a need to improve the old NAFO? That is motherhood; everyone agreed. Did the new reform package deliver improvements? It most definitely did. The act — the convention to me is the act; I am a federal fisheries former enforcement officer — grandiose and nice in words as it is, is not where the action is. The action is in the regulations and the policy that govern the activities on the water. The work done on improving surveillance and enforcement in the attachment to the reform is even more important and a better stick to deal with the international community than the convention is, in and of itself.
I fully support the reform. I have made that clear. It surprises me that the whole Canadian delegation agreed with the improved amendments and the reform. This was true without exception until recently when the Government of Newfoundland and Labrador saw fit to not be a party to some of the reform. I also find it a bit disappointing that former people can be the experts and the ones who have all of the answers. Meanwhile, everyone in the Canadian delegation from industry to all levels of government can do something, yet they are not experts, and they are not right.
With sovereignty being an issue and having foreigners inside to patrol, at this point in time, any minister of the federal Crown who would decide that we will bring in foreigners to do surveillance and enforcement of our boat in our bays I find to be distasteful. They are out checking the boats, measuring the gear and doing the recording. I do not know anyone who would think about doing that. That is separate from setting the total allowable catch — TAC — and quotas.
Last, with all of the negativity, concern and criticism that has been levelled at this group of Canadians in the delegation that they did things so wrongly and did such a poor job of putting forward amendments that were beneficial, at this point in time, I rely on the lawyers in the Department of Justice Canada, Foreign Affairs and International Trade Canada and Fisheries and Oceans to be my masters in terms of the law. I see no one, agency or person, anywhere in Canada, including those experts, who has put on the table any independent, legal advice from a internationally respected lawyer or agency saying that foreigners can come in to deal with Canadian sovereignty and manage our fishery.
The Chair: This is our second run at NAFO. When we studied this the last time, we wrote a letter to the Prime Minister. It suggested that one course of action would be to bring in an outside, independent panel of experts to assess it. That was not done, but maybe it is still a good idea.
Senator Cochrane: I would like to ask about the NAFO meetings in Lisbon, Portugal in September, 2007. You were part of the Canadian delegation, as you told us. Either one of you can answer this.
What was your role? Were you consulted or involved in the negotiations? Who were you representing?
Mr. McCurdy: The Canadian delegation that I described earlier consisted of industry people, provincial government advisers and DFO officials. The NAFO reform had two aspects. First were changes to the convention itself — the constitution of NAFO. Second were significant improvements in enforcement. These two parallel streams were happening. From time to time, Canadian DFO officials and Canadian delegation members would hold meetings to report on the progress or the lack thereof in negotiations toward reform and to receive input on it.
For example, initially a draft said that NAFO could set management measures inside 200 miles. People on the delegation went haywire over that and said that no way in the world would they agree to that. The question then became what type of amendment would be proposed to fix that. Ultimately, the amendment said that it would only happen if Canada requested and subsequently voted for it. It was our view that that it would only happen if it was in Canadian interest and it adequately addressed the concern.
At the end of the day, the final decision rests with the minister. We rarely meet with the minister on these matters, although Mr. Andrews and I had a conference call with the minister on the solution that I proposed a few minutes ago. Normally, we meet with officials.
The Chair: Can you tell us what the reaction might be?
Mr. McCurdy: I also raised it with the provincial minister. The federal minister seemed interested; she said that they would take it under advisement. I have not heard anything since, but the call went longer than we planned for initially. We had a good exchange back and forth, but it was noncommittal in terms of an outcome.
Senator Cochrane: For the record, would you say who the minister was?
Mr. McCurdy: That would have been Mr. Hearn.
Mr. Andrews: Important to your question, senator, is that it was the whole Canadian delegation. For someone who has not been to these NAFO meetings, it was the who's who of the Canadian fishing industry as it pertains mainly to the Atlantic Coast. We had the Fisheries Council of Canada, the offshore trawlers represented by the Groundfish Enterprise Allocation Council, the union from Newfoundland and Mr. McCurdy in attendance. All of the individual companies with a big stake in this were there.
It was not only DFO officials going their own separate way. As Mr. McCurdy said, all of us had an opportunity. People such as Mr. McCurdy and me possibly had an extra opportunity in that I wore a hat for no one. I was a commissioner appointed by the Government of Canada. It allowed me, as an individual, to be a little more independent, if I can use that term loosely. We had ample time to discuss all of the amendments and to have us, as a group collectively, feel as though we are relatively comfortable.
I have not been involved in many international negotiations, but I know that to have 12 countries, including the European Union with 27 countries behind them, come to any agreement on any wording or reform is a most difficult challenge. We did air it all and achieve some improvements.
Senator Cochrane: Who were the representatives from Newfoundland and Labrador?
Mr. McCurdy: The Deputy Minister of Fisheries and Oceans would have been there and another DFO official. They were the only representatives at that meeting as far as I recall.
Senator Cochrane: The deputy minister was there?
Mr. McCurdy: The deputy minister is present at most meetings of the Canadian delegation, although they are scattered. I think you will see Mr. Dooley this morning accompanying the minister. He is a regular participant on behalf of the minister.
Senator Cochrane: We have heard concerns of Mr. Applebaum and others about the proposed two-thirds majority voting system. They say that this amendment will make it harder for Canada to obtain restrictive measures. Does this concern you, Mr. McCurdy, and what are you hearing from the people in the fishing industry on whole issue?
Mr. McCurdy: On the issue of the vote, the argument Mr. Applebaum made is an argument in the abstract that it would be more difficult to get management measures. There has been one vote on an issue involving a quota allocation, a significant issue to Canada in the last several years, since the turn of the century. That was in 2002 at a NAFO meeting. The scientific advice for a turbot quota was 36,000 tonnes. The EU was pressing for 44,000 tonnes, I believe. They proposed a motion to NAFO.
Canada would not agree to a consensus on that, and it was forced to a vote. Our delegation strongly pushed for a vote to get it on the record; eight voted in favour, six against, and one abstained. In fact, it is the reverse of what Mr. Applebaum argued. For the one concrete example in recent years, if it had been a two-thirds vote, they would have failed in their application to get 44,000 tonnes. The six who voted against were all of the view that the scientific advice should have been followed. They wanted a lower number.
A provision I personally raised and that the Canadian negotiators were successful in having included was that in the event that you could not get a decision on the sharing of quotas, you would revert to the previous year's sharing. In our view, the two-thirds vote better protects the shares we currently have as one of the dominant shareholders in NAFO.
Senator Cochrane: What are you hearing from the fishing industry in Newfoundland?
Mr. McCurdy: That is not a priority among the issues people call about. There is an open-line discussion about it.
Senator Cochrane: Is that all you are hearing? You are not hearing anything else from the local fishermen?
Mr. McCurdy: We receive inquiries and have discussions, but it is not a burning issue. The economy of the fishing industry is falling apart. It seems the only issue anyone other than those directly involved is addressing is this one. It is an important issue, but it is not the only one. I am not hearing a great amount of input. DFO people will be at an upcoming meeting to provide some background on it, but it is not one of the burning rank-and-file issues with which I have been confronted.
Senator Poy: This is my first lesson on the fishing industry in Canada because I am new on this committee. I would like some clarification. From what I heard, NAFO limits are obviously larger than Canada would want to allow, and that is within the 200-mile limit. Am I correct?
Mr. McCurdy: Historically, that has been case. The NAFO regulations have resulted in fishing at far higher levels than the Canadian government has supported. It is less so in recent years than back in the 1980s and 1990s.
Senator Poy: I am wondering whether Canadian fishing fleets go to European or Japanese waters to do the same thing to them as they do to us.
Mr. McCurdy: No.
Senator Poy: Why?
Mr. Andrews: We do not have any history of our fleets going much beyond the Canadian zone, especially on the Atlantic side. We may go as far as the Nunavut boundary line with Greenland, which is Danish, but beyond that we have generally stayed, I guess, because of our good fishing opportunities. Since we have no history of being in any of those places with all of the regional fisheries organizations, we are now more or less confined to our own area.
I would like to add a point to complement Mr. McCurdy's statement about tax and quotas in Canada and in NAFO. Bear in mind one thing: Three countries control 90 per cent of all the TAC and all the quotas off our coast. They are Canada, the European Union and Russia. I can tell you that whether it is two thirds or a simple majority, it is not easy to try to change that.
Senator Robichaud: You mentioned custodial management. Could you please give us your view on that, and how did that enter this debate?
Mr. McCurdy: Just briefly on Senator Poy's point, one of the main reasons we cannot fish elsewhere is because virtually everywhere in the world, 200 miles is sufficient to cover the entire continental shelf. Only a handful of places in the world exist where countries have the misfortune that the continental shelf goes out further and they have this problem of jurisdiction. Because of that problem and the overfishing reflected in that graph I held up earlier, a strong body of opinion, certainly in our province, that I share holds that the ideal solution would be to have the jurisdiction extended in some fashion to the edge of the continental shelf; custodial management is a modified version of that that would give some responsibility for enforcement to Canada to have meaningful enforcement outside 200 miles.
Senator Robichaud: On the continental shelf.
Mr. McCurdy: Yes. Reading through the testimony, Mr. Applebaum said — and I heard him say it repeatedly when he was with DFO — that international law does not support that. It is very clear that, for that to happen, the Canadian government would have to say that it will take international law a step further and is willing to accept the consequences. I do not think there is any chance of a consensus on that. The government would have to say that it is going ahead. That is how international law develops: Someone asserts action. However, you have to be prepared for the consequences.
Everyone in Newfoundland and Labrador would dearly love to see custodial management implemented to provide better protection of our resources. Many people have commented that when you look at the ministers who have had a turn as a member of the federal cabinet, they found that while in opposition it is relatively easy to advocate custodial management, and some have been very explicit when they have been in opposition. However, when they get in there, they find it is trickier in practice and have been unable to achieve it, unfortunately.
Senator Robichaud: How did that become part of this debate? The minister said that it was a step toward that. Did I hear correctly?
Mr. McCurdy: The minister said that it is equivalent to custodial management. Both Minister Hearn and Minister Shea said that, for all practical purpose, what we have here now is custodial management; I think that is nonsense. I suppose in a way that is how it became part of the debate, and that really distorted the debate, which should have been between the current NAFO regime and the proposed amendments. It confused the debate by introducing this element.
Mr. Andrews: I would just add two things. First, it entered in because the federal minister and the provincial premier and minister raised the issue. In one way or another, going to custodial management is almost a side bar or a parallel bar to improving management.
I would raise a second item, for the benefit of you people. If you have not done so, if you want to get the best 10 pages that I have seen on custodial management, you refer to Art May, Derrick Rowe and Madame Russell when they wrote their report on straddling stocks and extended jurisdiction in 2005. Although it is a provincial government concept from the late 1980s and early 1990s, the definition that Dr. May and his panel gave to custodial management is probably the best I have seen as we understand it.
Senator Hubley: Welcome to the witnesses. Certainly your reputations precede you; your names are brought up often at this committee.
I am wondering how many of the NAFO contracting parties have ratified the amended text to date.
Mr. Andrews: Just one; that was Norway. This year's annual NAFO meeting was held in Bergen, Norway, and as a prerequisite almost to the other countries going there, they announced that they had already ratified. That is the only one I am aware of to date.
Senator Hubley: Are other countries raising objections that you know of?
Mr. McCurdy: I am not aware of any.
Mr. Andrews: No.
Mr. McCurdy: The process in some of these countries is slow. Imagine the European Union with 27 countries. It was not raised at this year's NAFO meeting.
Senator Hubley: Given that the EU will be taking some time to decide on these new amendments, is Canada in a position to rush into this, or do we have a reason to move quickly?
Mr. McCurdy: Personally, I am neither in a hurry nor not in a hurry. I do not think it matters if we are among the first or the last. It would not be in our interest to be dragging behind everyone else. We should make up our minds on the issue, whether we will do it or not, and proceed.
The Chair: As a supplementary on that, as you say, the EU will take some time because they have so many countries. Does that not give us more time to study it ourselves?
Mr. McCurdy: I suppose if we wanted to. I do not know what the time frames are, and we have to report on the European time frames, which were not as tedious as I had anticipated. Still, only one of 12 countries has ratified so far. It takes time to get through the red tape. My sense is that reopening negotiations is probably a non-starter.
The Chair: We are not talking about reopening negotiations but about studying the convention.
Mr. McCurdy: As I said, I do not think it is necessarily urgent that we proceed.
Senator Hubley: With respect to the proposed change in voting to a two-thirds majority, was it a 50-plus-one method prior to this amendment?
Mr. Andrews: Yes.
Senator Hubley: Was the 50-plus-one method problematic?
Mr. McCurdy: To be clear, the difference is probably, depending on how many people are voting on a particular matter, either one or two votes. It is not an earth-shattering issue. With 12 members, you need 7 votes out of 12 currently to get a matter approved; with the two-thirds majority, you need 8 votes out of 12.
I was prompted to support the move to two thirds because we have a large amount of quota share. For example, we have American plaice stock, which is a flatfish, that within the next year or two will reopen. It is historically a very prolific stock. We have 98.5 per cent of the quota in Canada. We will not end up with more than that. Any change to quota share would be to our detriment. We can make it tougher for someone to amend the current quota tables. In my opinion, for the people who actually make their living from fishing, that is pretty important.
On balance, it is a judgment call. At times, we might wish we had the other method back, the straight majority, but my view is that, on balance, the two-thirds majority is in Canadian interest.
Senator Manning: Welcome to our colleagues from Newfoundland. Certainly some of the information you have given us here this morning, with your expertise and knowledge from being part of the discussions from the beginning, is eye-opening to our debate around the table. When we hear from amateur critics, it becomes mind-boggling on this end, but you have first-hand knowledge.
I have a couple of concerns. One is in relation to the clause in the amended text that has to do with the foreign vessels coming inside the 200-mile limit and having some type of jurisdiction or whatever the case may be. I realize that Canada must request it and agree with it, from your earlier testimony.
I am wondering whether it is necessary to have that clause as part of the agreed text. Has that been discussed? That seems to be the bone of contention with some people.
Mr. McCurdy: If I had my druthers, the simplest thing would have been to just take it out. That would clear it up once and for all. The problem was the negotiations that took place, with the result that everyone had a shopping list of things they wanted changed. It was improved from the original draft, but once you reopen it, then everyone gets their shopping list again and the process unravels. If we could simply delete that, that would solve the problem.
I believe what I proposed, for all practical purposes, gives us exactly the same practical outcome without having to unravel the ball of wool.
Senator Manning: I know there is an issue in Newfoundland and Labrador about some type of MOU, and I welcome your opinion on that because it seems as though it is a bridge to get to where we want to go at least.
Other provinces, such as Nova Scotia or Prince Edward Island, have some feedback concerning the new text. Would that be necessary in your view, or how would that expand into including other provinces?
Mr. McCurdy: Thank you for raising that. I mentioned to the ministers that Mr. Andrews' and my view is that the same right would have to be extended to other provinces that have an interest. We would require not only Newfoundland's consent, but if Nunavut or Nova Scotia, for example, had an interest that should require their written consent. They are the only provinces I can think of that might feel they have an interest. It would have to be extended to all of them, and that makes it even tougher to get so much the better.
Senator Manning: In your opening remarks, you touched on that the TAC was 164,000 tonnes — correct me if I am wrong — and the actual count was up around 850,000 tonnes, give or take. You said that it was legitimate under the present agreement.
With this new improvement that we are hoping to put forward, would something of that nature be addressed there? Could that happen under the new agreement, or will we try to stifle that somewhat? That seems to have been, as you said, detrimental to the fishing stocks off of Newfoundland and Labrador. As we move forward, hopefully in a more positive direction, would that issue or one of that nature be addressed?
Mr. McCurdy: Yes, it would be. The procedures are more cumbersome than you would like if you had your druthers.
Someone objecting and setting a unilateral quota would have to give their reasons in writing for doing so. Then the objecting party, the fisheries commission or another party could take that to a dispute settlement mechanism, which starts as an ad hoc panel within NAFO. Depending on the outcome of that, if that does not resolve the matter, it goes to the United Nations Fisheries Agreement, UNFA, provisions or the United Nations Convention on the Law of the Sea, UNCLOS, provisions for dispute resolution. In the interim, while that more formal and cumbersome process is being followed, the decision of the ad hoc panel would remain in effect, so at least you would be on your way to addressing it and trying to get it contained.
With respect to the rampant overfishing that was occurring, you cannot imagine any reputable panel endorsing that behaviour. It would at least put some fences around it.
Senator MacDonald: Mr. McCurdy and Mr. Andrews, welcome to the committee. Senator Manning alluded to my first comment. I always find it frustrating in these discussions — and I understand why it is so important because Newfoundland is a major part of the industry and has been for 500 years. However, fishing is an important industry in Nova Scotia as well. Certainly in Cape Breton, they have fished off those banks for centuries.
I do like your suggestion of the MOU with the federal government and the Government of Newfoundland, but I think also that the Government of Nova Scotia should and would want to be involved in this. I would hope that something could be done along those lines. I thank Senator Manning for bringing it up and you for addressing it.
The perception when it comes to these negotiations is that everything is being laid on the table by the Europeans, and we have to respond to it. I am curious about what initiatives we put on the table when these negotiations were embarked upon.
Mr. McCurdy: I do not know where that came from about it being put forward primarily by the Europeans. I was not present at the negotiations but certainly on the briefings.
Senator MacDonald: Do you agree that that is the perception?
Mr. McCurdy: Some people, who were not present during any of the proceedings, have asserted that that was case. I suppose people can say what they like in public.
My recollection was that probably the principal demander of reform was Canada and that the items in the total package that were of the most interest to Canada, getting a settlement dispute mechanism in place, were a high priority for many years. The other reform that was perhaps even more pressing was meaningful improvement in the enforcement regime. There are two pieces to it, and the parallel piece was enforcement.
For example, this year, three foreign vessels that I am aware of were caught by the patrol vessels or the enforcement regime in significant violation, and they had to return to home port. That is a penalty with teeth. If you are from Spain and you sailed from Vigo, Spain to the Flemish Cap and got caught cheating and had to go home after only eight days into a trip that was supposed to last for several months, that is a far greater penalty than a fine at some court in five years' time. It is a serious, immediate financial penalty. That was probably the single biggest issue.
When I look at those, I do not know the particulars, so I talk to the experts charged with running those enforcement vessels, the guy who has to scramble up over the side of the boat and actually enforce it. When I talked to the hands-on people, they told me that the enforcement changes, some of which are too technical for me to understand, were greatly increased. When I asked whether that would give them a better chance of enforcing the rules and keeping the problem under wraps, he said that those are real improvements if we can get them. That is what Canada pushed primarily.
Senator MacDonald: That is good to hear. Thank you, Mr. McCurdy.
Senator Patterson: I, too, am new to this committee, and I have been somewhat bewildered by the discussions of this new agreement. I must say that Mr. McCurdy's practical suggestion of a compromise here very much appealed to me. It seems to me, if we start all over again, we have lost the progress made. You just mentioned enforcement and a dispute resolution mechanism that was not there before.
Have you expressed your idea to the parties involved, including the Government of Newfoundland? I am wondering whether you have received any positive responses on what I consider a very practical suggestion with the players in this dispute.
Mr. McCurdy: No, I have not. There was a discussion, and I have not heard either positive or negative responses since.
Senator Patterson: You described the Canadian delegation in Lisbon as having been very representative. Do I take it that that delegation included representation from the Government of Newfoundland and Labrador? Did I also hear you mention Nunavut, which I represent in the Senate? Were they involved?
Mr. McCurdy: Newfoundland and Labrador was definitely represented throughout. Nunavut has had, from time to time, government representation. Mr. Andrews is more knowledgeable having worked on behalf of Nunavut. I do not recall if they were present at that particular meeting.
Mr. Andrews: Basically, along the same lines, and just with reference to Nunavut, at least one person has indeed been at most of the recent meetings pertaining to NAFO. The representative of the main commercial activity up there, the Baffin Fisheries Coalition, has been at practically all of the recent NAFO meetings.
The Chair: Senators, if there are no more questions, I will thank our witnesses for a very interesting morning. We have a number of facts that we can chew on, and we have some time to do that.
Thank you very much for coming. You have been very helpful. We appreciate you being here and being so frank and direct with us.
I welcome Minister Hedderson, a long-serving minister in the Government of Newfoundland and Labrador. Minister Hedderson has held various portfolios, including education, which is his original field, and tourism, among others.
Currently, Minister Hedderson holds a portfolio that is extremely important to this committee. Minister, please proceed.
Hon. Thomas J. Hedderson, Minister of Fisheries and Aquaculture, Department of Fisheries and Aquaculture, Newfoundland and Labrador: Good morning, committee members and staff. I am pleased to be here today to discuss a matter of great importance not only to the Government of Newfoundland and Labrador but also to the country as a whole. This fishery has played an important part in our history, in our culture and in the very being of who we are. Certainly, we hope it will continue to do so in the future. Matters related to the management of our fisheries resources both inside and outside our 200-mile limit are of extreme importance to us all.
The Northwest Atlantic Fisheries Organization was established in 1978 to manage fish stocks in Northwest Atlantic areas outside national jurisdictions, including those that straddle the Canadian 200-mile economic zone, most notably on the Nose and Tail of the Grand Banks of Newfoundland and Labrador. Several of these stocks, in particular northern cod, contributed significantly to the prosperity of our rural people and communities.
NAFO, however, has never worked in the best interest of Canada, our province or the fish stocks under its management. In the initial years of NAFO, Canada was able to secure some degree of control within the organization. However, this came at a price because Canada was able to gain the support of other parties around that NAFO table only by providing access to our fish through bilateral agreements.
The dynamics of NAFO changed greatly in 1986, when Spain and Portugal joined the European Union. In efforts to provide its new members with fishing opportunities outside other member's waters, the EU looked to the Northwest Atlantic. From 1986 to 1990, the EU filed over 40 objections at NAFO and set unilateral quotas for several stocks, resulting in fishing well above scientific advice permitted under the NAFO objection procedures. Often, EU vessels actually exceeded the quotas established through the objections, while others reflagged to avoid any restriction on fishing outside Canada's 200-mile limit.
The results of this behaviour were predictable, and many stocks collapsed in the early 1990s, several of which had been historically fished and processed by Newfoundlanders and Labradorians. Processing plants closed in a number of communities in the province, and the Canadian offshore groundfish sector was reduced to a few vessels.
The Greenland halibut — turbot — stock was one of the few offshore stocks not under moratorium by the mid- 1990s. When Spanish vessels continued to illegally overfish this stock, Canada had finally had enough and fired on the Spanish trawler Estai in 1995, creating an international incident known as the "turbot war." As a result of that, NAFO adopted some much-needed rules. All vessels would have to carry observers, all vessels would be inspected at dock-side and mesh-size regulations were established for groundfish. Again, this came at a price to Canada because the EU was provided with the biggest share of the turbot quota in exchange for agreeing to these measures.
After a short period of relative calm, problems began arising in the late 1990s and early 2000s. Canada was able to confirm, through detailed assessment of observer reports and surveillance, that the EU was exceeding the turbot allocation by several thousands tonnes, excessive fishing on moratorium species was occurring, misreporting was increasing and fishing gear with illegal mesh size was in use in the NAFO Regulatory Area.
By 2003, after 25 years of the clear and unequivocal failure of NAFO to responsibly manage fish stocks under its responsibility, the Government of Newfoundland and Labrador asked the Government of Canada to pursue an alternative to NAFO. We also believed, and continue to believe, that the only long-term solution is Canadian custodial management of straddling stocks. We also believe this to be the position of the former Minister of Fisheries and Oceans Canada, the Honourable Loyola Hearn, and the current Prime Minister of the country. They promised the people of Newfoundland and Labrador, in writing and verbally, that they would pursue custodial management if elected.
In March of 2004, Mr. Hearn, while in opposition, actually tabled a private member's motion in Parliament asking the federal government to take custodial management of the Nose and Tail of the Grand Banks and the Flemish Cap. Furthermore, the current Prime Minister promised to do so within five years while campaigning in Newfoundland and Labrador in December of 2005. Once elected, we were confident that, for the first time, Canada would seriously examine an alternative to NAFO.
However, here we are again, in late 2009, after almost four years under the current government, talking about NAFO reform and amending the existing NAFO Convention. These amendments do not provide any additional decision-making responsibility for Canada over straddling stocks, yet we listen to the federal government claim that it has achieved custodial management. In reality, they never even tried. Instead, the Government of Canada, along with other NAFO members, undertook a NAFO reform process.
They claim that our province has taken a 180-degree turn on this issue. I suggest they examine their past statements and measure it against the proposed changes to the NAFO Convention, which, for the first time ever, produces a mechanism for NAFO to apply measures inside our waters. Our province and many experts, including former DFO executives with extensive NAFO experience, are extremely concerned about having such a clause in the NAFO Convention. Simply put, we cannot accept it.
Particularly in these times, when Arctic sovereignty issues abound, Canada as a country, as a coastal state, must demonstrate with clarity and certainty that we will not accept such measures in any jurisdiction of this great country. Some have argued that we need not worry because the proposed amendment would only put this option into the NAFO Convention and that Canadian politicians would never allow it to happen in practice. Unfortunately, no one can predict how any future minister, or government, for that matter, will act. It is therefore critical that the option not exist in any manner, shape or form that opens up the possibility of foreign management and enforcement in Canadian waters.
One of the primary objectives stated by the federal government heading into NAFO reform was to prevent the continued abuse of the objection procedure. The agreed-upon NAFO objection review procedure in the new convention continues to be inadequate. While it puts a process in place, nothing within this process is binding on a contracting party or prevents unilateral action that could seriously jeopardize conservation. Nations can continue to use the objection procedure, and while this can be challenged by others at NAFO, unilaterally decided quotas will continue to be fished, further eroding the precious and often vulnerable resources off our shores. Indeed, such quotas are being set today in relation to shrimp stocks off our coast.
We are finally seeing, after almost two decades, the first signs of groundfish recovery on the Grand Banks. However, after reviewing the outcomes from the past two NAFO meetings, I am more convinced than ever that Canada must pursue an alternative. Last year, at the 2008 NAFO meeting in Lisbon, Canada provided yellowtail flounder to the United States in order to achieve its objectives at NAFO. This past year, Canada agreed to set a number of TACs above the scientific recommendations in order to achieve its objectives. I highlight this not to criticize the officials who attend and negotiate on behalf of Canada but to demonstrate why NAFO will never work in the best interest of our province and, indeed, the best interest of this country. When you are one member of 12, with specific objectives, you have few alternatives but to negotiate, and in the end, you either compromise on conservation or you buy support with fish. This was the practice of the past and will be the practice of the future under NAFO, with the existing convention or with the proposed amended convention.
Until we are able to secure enhanced decision-making responsibility for the coastal state over straddling stocks and establish binding dispute settlement within NAFO, I fear the past will repeat itself, and it is the people of our province who will suffer the most. At the very least, we believe that Canada should be managing the yellowtail flounder and the American plaice on the Grand Banks. We hold approximately 98 per cent of the quotas for these stocks, yet we have to negotiate with 11 other parties on the management of these fisheries.
Surely we can do better than what is proposed in the amended convention. The Province of Newfoundland and Labrador is therefore asking that Canada not ratify the changes to the existing NAFO Convention and begin the process of pursuing custodial management, as was promised.
Senator Manning: Welcome, Minister Hedderson. It has been an interesting morning. Certainly listening to your statement has been interesting.
To clarify for our committee, I understand that officials from your department have been involved in these negotiations at different meetings over the past number of years. Correct me if I am wrong, but it seemed to me that, as with any negotiations, everyone realized that we were not getting everything that we wanted. However, some improvements happened with respect to the vote that would take place and to quotas, and so on. In the past couple of months, it seems that there has been a change. You alluded to that in your remarks. I agree with some of your remarks and with some of the statements that have been made, certainly on the federal level.
Can you explain to the committee the perception, if it is a perception — or the reality, if it is a reality — that a change has taken place from where everyone was part of these discussions, and now we are to a point where an important player, namely, the Government of Newfoundland and Labrador and the people of Newfoundland and Labrador, are now raising concerns about what has transpired?
Mr. Hedderson: In response to that, where we stand on custodial management has never changed. I do not care what letters or comments you put before me. The province, as I said, since this government came in back in 2003, backed up by their Blue Book, clearly indicated that custodial management was where we needed to go.
With respect to the negotiating table, you have clearly indicated one of my points, namely, that Canada has to give. In order to give, two things are spoken about, either conservation or fish. We find this to be unacceptable, especially when we talk about the American plaice or yellowtail, where we have 98 per cent of that quota. Why in heaven's name should we not be able to manage that and not always have it on the table as a bargaining chip, taking away from our ability, the harvesters of Newfoundland and Labrador, to go out and to be assured that that quota will remain intact.
If there is a change, it is that these conventions were put on the table. As with anything that comes out, we need to do a proper review. In doing a proper review, there is give and take. I have gone back, as have my predecessors, on a number of occasions for clarification. The latest clarification I asked for was on this amendment. I specifically stated that it seemed odd to me and to our province that a country would allow a minister to have the power to allow an incursion upon our sovereignty by allowing fishing activity from other nations within the 200-mile limit. I asked whether, at the very least, he would consider making it a cabinet decision, where at least it would become public and a debate would ensue. The response I received was a thank you for my support. I do not know where that came from; it must be in the mind of the person who received the letter.
It was a concern about how far the government would go in shoring up that convention. The response I received was that there would be consultation back and forth, with no mention of it going to cabinet. Again, this convention contains language that allows incursion into our 200-mile limit at the whim of a minister, and that should never be allowed.
Senator Manning: We have heard testimony from Mr. McCurdy and Mr. Andrews. No doubt custodial management is and always will be a hot topic. I understand the politics of the discussion on that. However, it seems that the new wording in the NAFO Convention is separate from that, that these are two different issues. I will give you an opportunity to comment on that.
Mr. McCurdy mentioned the new agreed text this morning. The two major processes for Canada are the dispute objection mechanism and the change in the voting procedure. You said that we hold 98.5 per cent of the American plaice quota. In order for that to change under the new agreement, we would need two thirds of the vote. Under the old agreement, it was 50 plus one.
Without putting words in Mr. McCurdy's mouth, it seemed that that was a strengthening of Canada's stake at the table. Is it possible that the agreement that they have worked on could be put in place to strengthen that? Custodial management seems to be a different issue from that.
Could you address those two issues?
Mr. Hedderson: First, on separating the conventions from custodial management, I do not agree that they can be separated. Our province was told, when these conventions came back from the NAFO table, that it was custodial management, and that was the greatest insult that could be put to us. This is nowhere near custodial management.
On the voting procedures, some will argue that the requirement for two thirds of the vote will be a strength if we want to hold on to something, but it will go against us if we are looking for something to go forward. Again, it is six of one and half a dozen of the other, as we say in Newfoundland and Labrador.
On the objection procedure, it looks as though the process may be more clearly defined, but the end result is the same: There is no binding of the parties. They can continue to fish. They can continue to make their own unilateral quota. How can anyone interpret that as "custodial management"? You cannot.
With respect to the sovereignty of this country, the basic problem is the area of application. This convention came from the EU. They were the ones who wanted to do the whole area. The Canadian delegation had to try to get that off the table, and this is what they came out with. No one can tell me that there is no risk involved when you put in writing that NAFO can come into our jurisdiction. That is a risk. It is written there, and it is weaker than the former convention. In no way can we, as a province, agree with that.
Senator Manning: We are hearing all sides and the committee will decide what we want to put forward, but there seems to be a difference of opinion about this. Whatever government is in Ottawa must invite others in. We must have an agreement on that. Mr. McCurdy put forward a suggestion about the possibility of the Government of Canada signing an MOU with Newfoundland and Labrador and other provinces that may be interested in being part of the decision before any process would begin.
Is that something you are open to and would welcome? Is that something you would be willing to discuss with the Government of Canada to ensure that the interests of Newfoundland and Labrador, in your case, are part of the overall discussion if we reached a point where that would happen?
Mr. Hedderson: We are always open to discussion, as we have demonstrated through this whole ratification process. I understood that in a ratification process the government would listen to all sides, get it into Parliament for a healthy debate and then move on. We are open to any suggestions. Whether we agree with them is another story.
On this convention, as I have pointed out, the fact that we would have to enter into an MOU and a veto tells us that a risk is involved. If there is a risk, as I clearly stated, we want no part of that and believe that our country should have no part of that. No risk whatsoever should be involved in any language or any agreement that in any way compromises the sovereignty of this country. That is where we, as a member of the federation, stand. We are surprised that the country, which has responsibility for ensuring that sovereignty is protected, is allowing language into agreements that would provide even a slight risk. Any risk is too great as far as our province is concerned.
Senator Poy: Minister, you mentioned in your presentation that the Government of Canada undertook NAFO reform with the other members. At the end of your presentation, you ask the Canadian government not to ratify the changes.
How can the government not ratify something they have negotiated?
Mr. Hedderson: If a mistake is made in negotiations, does that mean you turn a blind eye and say that since we negotiated, we would look bad if we went back, and we cannot do that? Come on. This is about our 200-mile limit. This is about a resource that is near and dear not only to our province but also to the entire country. If any government is not big enough to recognize that this is a problem, then we have a big problem.
Senator Poy: When is this supposed to be ratified?
Mr. Hedderson: The politicians here may be more familiar with the federal Parliament. I know it was introduced. It did not have to go to debate. I understand there is some movement to get a debate in the Parliament. Again, I would have to leave it up to the chair to advise me or the table as to what state it is at now.
The Chair: We went through that with Mr. McCurdy. There really is no deadline. Only one country has ratified it, and that is Norway; the EU has not; Russia has not; many countries are involved. The fact is that this will not be approved right away.
With respect to our own position, it has been in Parliament for 19 days. That was extended to a further 19 days, but that is a government deadline set for consultation purposes because Parliament does not have to approve this. It will be a government decision, but no timeline applies.
Senator Poy: If we are able to achieve custodial management, would that be under the federal government, or would the Government of Newfoundland and Labrador have much of the control over its fisheries?
Mr. Hedderson: We depend upon our country as a member of the federation. This is not only looking after the interests of Newfoundland and Labrador but also any coastal province and indeed the whole country, so it would be a responsibility of the federal government; and naturally, we would like to have input into whatever transpires as it applies to the waters off our shores.
Senator MacDonald: Thank you for being here this morning, Mr. Hedderson. I go back to a point I raised earlier but want to address with you. Discussions about fisheries off the Atlantic Coast so often centre on Newfoundland and the perception of Central Canada of Newfoundland and the fisheries, but of course, Nova Scotia is a big fishing province. Cape Bretoners have fished off the coast of Newfoundland and the Grand Banks for 400 years. You have made some strong statements in here. I appreciate your passion on this issue, but I am curious about whether the Government of Newfoundland has consulted the Government of Nova Scotia on these issues. Have you discussed your concerns with the Government of Nova Scotia and tried to incorporate them into your decision-making process?
Mr. Hedderson: When we did our last review, it was under the direction of our premier, and the premier certainly made a clear statement, not only to the Prime Minister, but he also wrote a letter. As a matter of fact, he has written two letters. The first letter clearly articulated the position that I have articulated this morning and called upon the federal government to not ratify these conventions and put forward an objection that would get the ball rolling with respect to NAFO.
However, he sent those to all of the Maritime provinces, to Quebec and to anyone else with any interest whatsoever, and asked the premiers of those individual provinces to join with us in ensuring that these conventions were not ratified.
Senator MacDonald: With respect, Mr. Hedderson, I read the letter. The letter is not really a negotiation. It is a statement of his demands, and he asks for support. However, that is not the same as negotiating with those provinces, sitting down and getting the consensus on how it should be approached.
I am saying, as a Nova Scotian, that if people on the East Coast are making demands of the Government of Canada, we have a right to be included in the decision-making process. No government should take it upon itself to speak for the rest of the Maritime provinces on this issue.
Mr. Hedderson: I beg to differ.
Senator MacDonald: No, I am not saying —
Mr. Hedderson: I beg very much to differ, sir.
Senator MacDonald: Excuse me. I am not saying that the end result —
Mr. Hedderson: That is exactly what you are saying.
The Chair: I think what we —
Senator MacDonald: I am not saying the end result would be any different —
The Chair: Order, please.
Senator MacDonald: — in the negotiations.
Mr. Hedderson: First, no negotiating is happening. We, as a province, stand up for our resources off our shores, and we would encourage any province to do the same. I am saying that we made an offer for others to join with us in our dispute, I suppose, or our disagreement or whatever, but it is not about negotiation. We did not write the letter to the Prime Minister to negotiate. Our premier wrote to the Prime Minister clearly articulating a serious era on the horizon that needs to be addressed.
Senator MacDonald: I am not talking about the letter to the Prime Minister; I am talking about the negotiations with the Province of Nova Scotia to get their opinion and feedback on this issue.
Mr. Hedderson: Again, do you not think that is the responsibility of Nova Scotia? Once you are made aware of a situation through a letter, even being copied on it, someone might say that maybe they should be involved in this.
Senator MacDonald: I think we should be involved.
Mr. Hedderson: Then it is the responsibility of the Government of Nova Scotia and the senators of Nova Scotia to stand up and be counted.
Senator MacDonald: That is why I am asking the question, sir. I will be discussing these matters with the Government of Nova Scotia.
The Chair: We have had a good exchange on that particular point. I remind everyone that in our discussions with Mr. McCurdy, it was generally agreed that it would not just be one province that was approached but that there would be a number of provinces involved, including the area that Senator Patterson represents of Nunavut because they have some interest too. This issue is perhaps more important in one province than others, but it is important to other provinces too. As I heard the discussion around the table with Mr. McCurdy, it was generally suggested that the approach be made to a number of provinces.
I would like to terminate that particular discussion if we could, and go on to Senator Cochrane.
Senator Cochrane: Thank you, Mr. Minister and Mr. Dooley, for coming. We really appreciate you being here.
My question is about a media release dated September 11, 2009, in which the premier called for immediate action from the Prime Minister on the proposed NAFO agreements. It says that the provincial government has made an earlier request for the tightening of the amendment. I will let you read it, minister.
Mr. Hedderson: Was that a press release or a letter?
Senator Cochrane: A media release.
Mr. Hedderson: I do not have that one available. Could I have a copy of it?
Senator Cochrane: Actually, I do not have it. Anyway, I will ask you a question, and you could get back to us in writing.
Mr. Hedderson: Okay.
Senator Cochrane: I want to know the nature of your request and how and when it was made and what was requested in terms of tightening the amendment.
Senator Manning: It is part of the letter that the premier wrote. It could be in the news release also, but I know it was part of the letter.
The Chair: I think what was agreed, Senator Cochrane, was that the minister would get back to us on that.
Mr. Hedderson: I have that now. This is the reference to a letter that I sent to Minister Shea. As I have already articulated when I was talking with Senator Manning, there was a request. With anything that comes down, obviously we make some comments on it if we need further information and such. We went back to Minister Shea, and I asked, as a minister, if she would be open to tightening up that convention, and tightening it up because we thought, and really were shocked, that a minister of the Crown, without any direction from cabinet, could do that. My request was whether she would be open to tightening it up. Her response had no reference to the cabinet but just a reference to the fact that, no, if there was such a thing that one would consult with industry and consult with the provincial governments and consult and consult. She did not indicate that it would ever go back to cabinet. Then we had our answer. At least, I had my answer.
Senator Cochrane: How and when would it be tightened up?
Mr. Hedderson: If a request was put out through NAFO, if the minister wanted to have a NAFO country come in and fish or whatever, that could be done just simply through the minister. The Minister of Fisheries and Oceans of the day could actually allow fishing to take place within our 200-mile limit without going to cabinet, without going to government. I asked Minister Shea whether she would be open to that request going to the full cabinet for discussion instead of just coming to a minister. I received a response back, basically saying that, no, there was no need.
Senator Cochrane: When was your request?
Mr. Hedderson: It was July of 2009.
Senator Cochrane: I want to read what Ted McDorman, one of our previous witnesses, told us about the whole issue. He said:
It is not a novel provision. The provision exists in other agreements. . . .
. . . This is not out of line; this is not some fanciful clause. It is consistent with what is going on in other organizations. Other countries that guard their sovereignty as carefully as Canada have not seemed to have a particular problem with this. . . .
. . . I do not think it is a deal-breaker.
Mr. Hedderson: I cannot speak for other countries. I can only speak for Canada. We, as a province, feel, when looking at the convention, that it does open up a door, ever so slightly perhaps, but the door is open. A risk is involved. We want that risk eliminated. The only way to eliminate that risk is to eliminate the convention and not even ratify it.
Senator Hubley: I noted in your presentation that you observed that the first signs of the groundfish recovery have taken place in the Grand Banks, but after reviewing outcomes of the past two NAFO meetings, you are more convinced than ever that Canada must pursue an alternative.
In light of that statement, would you tell us what outcomes have dismayed you in those last two NAFO meetings? Do you have an idea of what an alternative would be? Are you suggesting that we have our own fishing organization within Canada, or that we pursue something more rigorously with NAFO?
Mr. Hedderson: On the performance of Canada, in the most recent meeting, Canada went against scientific advice in a number of decisions. With respect to the halibut, again, a plan was put in by NAFO over a 5-, 10-, 15-year period, and the scientific council of NAFO clearly indicated that a reduction of the quota by upwards of 15 per cent would occur with each year.
We were surprised then that when the Canadian delegation went to the table, they asked for a rollover, which means no reduction. Again, that was against scientific advice. We, as a province, see the rebuilding as very important. That is one incident where they went against scientific advice.
A second one was with the 3M cod. This really came as a complete surprise to my officials, and when it was relayed back, it certainly caused a great deal of surprise our way as well. I mentioned that we feel the northern cod are returning, ever so slowly, and I do not know when or to what level, but they are recovering in some areas. We have had them under moratorium since 1992. The 3M cod have been under the same moratorium, but it has been lifted this year. The decision around the table was whether or not to once again go against scientific advice, the council's advice, or to follow the advice.
We were very much surprised that Canada voted in favour of going forward against the scientific advice, even though the United States, for one, and Norway, for another, were adamantly against it.
This is a recovering stock. Therefore, it begs the question of whether this is a precursor of things to come. Here is our nation out voting. I think we have less than 1 per cent of that quota, so it made very little difference to Canada, but again they had an opportunity to clearly state where they are.
These are problems that were surfacing at that table. I go back to the original point that we as a nation, when we are around the table, must give things. What did Canada give that made them vote in that particular one? I have no idea. Only the table would know.
Senator Hubley: You suggested that we investigate alternatives. I am wondering if you have something in mind.
Mr. Hedderson: I clearly stated it in my presentation. Obviously, you can pursue custodial management within NAFO. Our argument is that we had a promise that it would be pursued — that is the key word, "pursued." These conventions were indicated as pursued.
We feel you have two choices as a nation. You can do it within NAFO, but it certainly would not be through NAFO reform. If you are unable to get it through NAFO, we would certainly indicate that we should create our own organization and go from there.
Senator Patterson: I thank the minister for appearing.
I would like to try to get to the nub of this. As I understand it, you are concerned about the risk with this convention, but would you agree, putting aside for a minute the sovereignty issue that you have been eloquent on, that there are many gains in this convention, as amended? There is a dispute resolution mechanism. In addition, we had very clear testimony on this from Mr. McCurdy — that an improved enforcement regime is in place now. There is an appeal on the invidious objection process, where before there was none. You said that the two-thirds vote might cut both ways.
There is a risk with moving ahead but also the risk of losing these gains if we trash the treaty as it is proposed for ratification. Maybe you gave the answer when you said that we could do our own regime in Canada. I understand Newfoundland and Labrador was fully involved in the delegation that prepared this convention. Are you prepared to see Canada lose face and maybe the participants in Canada's delegation lose face by renouncing a treaty that was years in the making, taking us back to a convention that has decimated our fish stocks and that everyone agrees has been completely ineffective?
It seems we may not have custodial management, but we have made some progress in the gains that I have outlined. Are you really prepared to advocate throwing that all out?
Mr. Hedderson: Again, I will just go through what you have said. The sovereignty issue cannot be put aside. There is a risk there, and that alone stands in our books as an indicator that we cannot support these conventions. I do not care if it is just, as I said, a hair of a chance of any incursion on our sovereignty; that should never be there.
With respect to the objection procedure, again I say to you that the best that happened with that was that they found some sort of a process, but the end result is still the same: There is nothing binding. Therefore, countries can continue to set their unilateral quotas over fish, do what they like, take what they like, and that takes us back to where we were. As I said, with the vote, as you pointed out, it is six of one or half a dozen of the other; that is the way it is. Again, we cannot accept the conventions.
Senator Patterson: I understand you are sticking on the sovereignty issue. I am keenly aware of it. I represent Nunavut in the Senate. It is a huge issue in the Arctic.
I believe politics is the art of compromise. People of goodwill are ingenious when they find a compromise to an issue that is causing confrontation. Senator MacDonald alluded to this, but I want to put it to you again: Is there not a way to assure the Province of Newfoundland and Labrador and the other coastal provincial and territorial jurisdictions involved, whereby there could be — and lawyers are good at this — a binding, crystal-clear agreement? We will not call it an MOU. Could we not find an agreement where this intrusion that is so offensive would not occur, on the part of the federal government, without the clear consent of the coastal provincial and territorial jurisdictions? Would that be one of the opening-up mechanisms that could satisfy this serious concern of yours?
I respect where you are coming from. However, to me, Canada can bind itself with a solemn agreement that it would not act under this amended treaty without the consent of the provincial and territorial coastal jurisdictions. Has that been considered? Would you be open to considering that?
Mr. Hedderson: Again I say to you that the current convention prevents any incursion upon our sovereignty, so why would a country then go forward and put language into a convention that would perhaps compromise their sovereignty and then look for ways to have vetoes and MOUs and that sort of thing? This country should stand up and say that that convention should not be there. The original convention clearly delineated the areas, the incursions and protected our sovereignty. Why would it be changed?
Senator Patterson: It is not working.
The Chair: We have explored the angle, and I do not want to lose sight of the issue.
Senator Manning: I understand fully the concerns that the minister has raised this morning, especially when it comes to custodial management and the new agreement. I beg to differ on the belief that we have custodial management also. I think we are a long way from that, to be honest with you, and that may not go down well in some of the circles I go into, but that is my personal opinion.
My concern is, to echo the comments of others to some extent, several pieces of testimony that we have received here, including Mr. McCurdy's and Mr. Andrews' this morning and others, state that the negotiations on this particular amendment or new wording started many years ago. It did not start this year. It started even prior to the government of the day being in place. We are going back many years. With this provision of inviting foreigners inside the 200-mile limit, we have been told, and I take it it is your opinion, minister, in order to take that wording out of the agreement at the present time now, we will have to go back to square one and start these negotiations all over again.
Looking at the European Union of 27 countries, with Spain, Portugal, Russia and so on, we are looking at a number of years down the road again. We will all be gone from this place, 10 chances to 1, by the time we would reach an agreement. We talked about being one of 12. Yes, one of 12 with makes a difference. Judas made quite a difference at the table when with the 11 other disciples. However, the fact is that we have been told that in order to take that clause out, we have to start that process again. That might not be in everyone's best interests in the short term or the long term.
My concern is to return to the suggestion by Mr. McCurdy this morning about some type of agreement that the Province of Newfoundland and Labrador and other coastal provinces would have to that happening. I am trying to find a way here of moving forward without setting ourselves back a decade.
Maybe I am right out on left field on this; maybe I am not knowledgeable enough of what has transpired in the past, but listening to what we have heard at the table here over the past several weeks, I am trying to find a way to see if it is possible that we could come to an agreement with the Province of Newfoundland and Labrador and other coastal provinces to address the concerns you have over this provision?
Mr. Hedderson: Again, Senator Manning, our position is clear. It was clear from 2007, 2003, 2005. What has transpired has not followed the direction we sought from our nation. When it comes to our resource we feel our country, as I pointed out earlier in my responses, if it is the ratification process, must be willing to look, listen and then decide. Of course this table now has a job as well because you have a picture of all the witnesses who sat before you, and you have to find the truth in all of this.
Again, we are clear at all the meetings that custodial management is where we should be. Our premier stated clearly in his letter to the Prime Minister and other parties, as we stand right now, Canada has to stop the ratification of these conventions and as well make an objection so that we can get back to where we need to be, which is seeking the custodial management of the stocks that are in our waters and that straddle into the NAFO zone. I cannot say it any clearer than that.
Concerning any side deals or negotiations, as far as we are concerned, these conventions do not achieve custodial management. These conventions do not bring us any closer to any type of custodial management. We have clearly stated our position and, again, that is where we stand.
The Chair: Minister, in your statement you said that this committee will have to sift through all the testimony and come to some conclusions. That is probably where we are. We have not finished our witnesses, nor have we finished our discussion of the issue. However, some new material has been put on the table this morning that we had not dealt with before, and we need some time to deal with that.
I would suggest, senators, that we leave it there for this morning and continue our discussions next week, as soon as we can get other witnesses on the issue.
Is that agreeable?
Hon. Senators: Agreed.
Mr. Hedderson: I have just one comment. I extend a sincere thank you to all of the senators this morning for taking the time to listen.
As well, I did not get an opportunity to introduce my official, and I would like to certainly put it into the record.
This is one of my officials, Tom Dooley, who has certainly been very much involved with the NAFO file and has been a good support to me today.
The Chair: I was about to recognize him, and I hesitated because I am older than most people on the committee, and I remember a song written about Tom Dooley in the 1950s. I was hesitant to ask if it was the same Tom Dooley.
Mr. Hedderson: No, no.
The Chair: It is not; I see. At least I met one Tom Dooley.
Tom Dooley, Director, Sustainable Fisheries and Oceans Policy, Department of Fisheries and Aquaculture, Newfoundland and Labrador: Just do not ask me to sing it.
The Chair: Mr. Minister, thank you for coming, and thank you for bringing Tom Dooley.
(The committee adjourned.)