Good afternoon, everyone.
Pursuant to the order of reference of Friday, February 1, 2019, Bill , an act to amend the Criminal Code and other acts (ending the captivity of whales and dolphins), I'd like to welcome everybody here this afternoon, especially our guests: the Honourable Murray Sinclair, senator; Elizabeth May from Saanich—Gulf Islands; and, by video conference, Dr. Ingrid Visser, founder and principal scientist, Orca Research Trust.
We'll start off with our presentations very shortly. I'd like to recognize Mr. Gord Johns as a new member of the committee.
I thank Mr. Donnelly for his time and experience that he's shared with us at this committee.
I also want to extend congratulations to my friend and fellow Vancouver Islander Gord Johns for his new position within the New Democratic Party.
And from the bottom of my heart I thank Fin Donnelly for his work with us on getting this bill to this point.
I'd be very remiss if I did not extend thanks to retired senator Wilfred Moore, who is sitting right there and who brought this bill forward and introduced it on December 8, 2015. It's been quite a struggle.
To my esteemed colleague Judge Murray Sinclair, it's an honour to sit with you.
I also find it something of an irony that, as I sit here now, in the House we are extending messages of condolences and solidarity with the people of New Zealand after the brutal shootings in the mosques. Dr. Visser is actually in New Zealand.
Although this bill is one of the most important things I've ever worked on in the last eight years that I've been a member of Parliament, I have a role, as Leader of the Green Party, to rush back to the House to speak in rotation, so I will be very brief, recognizing that I am splitting my time with Dr. Visser.
I just want to share this with the committee as quickly as I can. It's been more than three years since this bill was introduced in the Senate. It finally passed third reading on October 23 of last year. In that period of time, it's hard to think of another bill that started in the Senate that has ever had as much review. It held 17 different committee meetings; more than 40 witnesses were heard. The bill has been very thoroughly studied, and so my plea may sound, I suppose, not unusual at this stage after a bill has been locked up for so very long in the Senate and finally made it to the House. I have to say it's been an enormous honour that Senator Moore asked me to co-sponsor this bill at the outset.
But now, I think the time for studying it is over. The time for passing it is now. If we were to make a single amendment, no matter how friendly or well intentioned, it would have the effect of killing this bill. Tens of thousands of Canadians want this bill passed. We hear from them in our constituency offices. We know many of them are children.
We want to see this bill passed because the science is on our side. At this point, we'll speak to the science.
Dr. Ingrid Visser, I could take the whole time I have available to both of us just to talk about your qualifications as an esteemed, internationally renowned scientist who understands the nature of cetaceans and what captivity does to them.
I'd like, with your permission, Mr. Chair, now to turn the floor back to New Zealand and our colleague Dr. Ingrid Visser.
Good afternoon, everybody.
I want to extend a thank you to all, for giving me the opportunity to assist you in your decision-making process for this timely and relevant bill. Thank you for the kind words.
I just wanted to point out that I am a scientist specializing in the study of cetaceans, and I definitely support this bill. I have a Ph.D. studying free-ranging orcas, but I've also been studying cetaceans for over two decades. Part of that has involved looking at them in the wild and in captivity. I've visited 35 different captive facilities in 16 different countries, both facilities in Canada and also a number in China and other areas. I have observed 13 species in captivity and 48 different species of whales, dolphins and porpoises in the wild. I've published 27 scientific articles, and those scientific articles have been cited over 800 times, with the top five articles being cited over 50 times.
The captivity industry in Canada is, as I understand it, self-regulating. Although in June 2015 I was invited by your ministry, along with Rob Laidlaw from Zoocheck, to provide input with respect to the formulation of standards for care for marine mammals in your country—and a number of the suggestions that I contributed were included—to my knowledge, none of those have actually been implemented by Marineland Canada.
It is my understanding that these standards are at the whim of the animal care committee, and that as of the 28 June this year, the OSPCA will no longer be enforcing animal welfare at zoos or aquariums in Canada. This indicates to me that there is a real need for federal legislation to ban the keeping of these animals.
I would like to refer you all to the submission that I made to your Senate, when this bill was before them, as it contains a range of information that remains pertinent to the discussion. However, I would like to quote briefly from it. This bill clearly allows for research, yet the industry continues to try, and I will quote here, to use the excuse of research benefiting conservation as an attempt to muddy the waters.
This is the quote:
Scientists, myself included, generally concede that in the past, there has been some research done on captive cetaceans that has helped us better understand their wild conspecifics. However, ethically, today's research should only be conducted in facilities such as natural seaside sanctuaries or out in the open with wild animals. These will provide humane housing and husbandry conditions that better meet the needs of these animals. Such facilities would rationally also provide better data—
That's the end of the quote, but I'd like to emphasize here that this also means it would provide better opportunities for conservation, so I believe that their argument is actually null and void.
Lastly, I'd like to note that the Vancouver Aquarium used to have orcas. They no longer do. Likewise, they used to have belugas, false killer whales and harbour porpoises, and no longer do. Yet despite these species no longer being part of their aquarium, their business model continued, and some might argue that it has actually improved. I therefore can't see how this would be any different for them, should this bill be passed in the same form, at Marineland Canada. For these and the other reasons I have outlined in my submission, I respectfully request that you endorse the passing of this bill.
I would welcome any questions that you'd like to put forward to me.
Thank you, Dr. Visser, for that. You have filled in a number of details.
I also want to thank the members of the committee for inviting me to be here to speak to this bill, which I took over sponsorship of after it outlived the career of Senator Moore, who retired while it was still in second reading.
We have essentially developed a bill in the Senate, which is an amendment to the Criminal Code, that makes captivity of cetaceans a criminal offence. If you look at it from that perspective, you'll see that there were some consequential amendments that had to be made such as those relating to exemptions as well as those relating to amendments to the Fisheries Act, all of which are set out in the bill.
The bill is a simple and straightforward one. It works from the presumption that placing these beautiful creatures into the kinds of pens that they have been kept in is inherently cruel and that, therefore, the Criminal Code amendments relating to cruelty to animals should be made applicable.
There are a number of consequential amendments that relate to that, such as the ban on the breeding of the animals, a ban on the import and export of parts of animals and the animals themselves, but essentially the bill is a straightforward Criminal Code amendment provision, and I think it very clearly addresses that.
I also want to just point out that the indictable offence and summary conviction offence penalties that are in place are in keeping with the Fisheries Act itself when it comes to the amounts of fines that can be imposed and the potential term of incarceration that can be imposed for an alternative to the fine, so I don't see that as being particularly out of line.
In addition to that, I also want to comment on correspondence that's been shared with members of the committee, I believe—it has certainly been shared with me—relating to concerns about the potential charging of Marineland, which is the only company in Canada that continues to deal with these animals in this way, that they might be subject to prosecution because some of the belugas that are in captivity right now are pregnant and may give birth afterwards.
The reality is that a pregnant beluga today would give birth after the bill is enacted, and Marineland would still be protected, because the beluga that is born would be part of the beluga that is inherently grandfathered into the legislation, if that is the right word for a pregnant beluga, but the reality is also that no one is going to prosecute someone who legally has the mother that gives birth to the whale after the legislation has been enacted or while the legislation is being enacted.
Those provisions that relate to the impregnating of whales will be for those that are impregnated following the passage of the legislation. I think we need to recognize that will be a particular offence that will be caught by the legislation.
The other question that has been raised has been: How does this bill work in conjunction with Bill , which has already been passed by the House? Allow me to point out to you that Bill C-68 makes it an offence under the Fisheries Act to fish for cetaceans, but it doesn't make it an offence to breed them, and it doesn't make it an offence to sell the embryos or the body parts. It also doesn't make it an offence to trade internationally in the various parts of the animals. Those are amendments that are contained in Bill , so there is a very distinct and clear separation here.
The third area I want to comment upon is the fact that the question has been raised as to whether this is provincial jurisdiction or federal jurisdiction. Provincial jurisdiction in the area of fisheries has to do with the licensing aspect of the business and not with regard to the criminality or the misconduct of individuals in the taking of the animal or the fish. In this case, this is very clearly a Criminal Code provision and a consequential amendment as a result of the Criminal Code amendment, so this very clearly falls within federal jurisdiction. It allows for exemptions to occur when they are subject to a provincial licence, and provincial licensing authorities are not impacted by this bill in any negative way.
I didn't really come here in order to spend a lot of time going through the bill with you because the bill is pretty straightforward. I commend to you the evidence from all of the expert witnesses who testified at the hearings, particularly the testimony of Dr. Visser. Someone raised the question, for example, of whether jobs might be affected by the closing down of Marineland. Marineland has enough beluga whales in existence to probably continue for another 30 years, so no jobs are going to be lost as a result of this in the immediate future.
My view would be that this amendment is necessary because, in the long run, our society will be much better off if we start to treat other creatures of this existence in the same way that we ourselves feel that we should be treated.
Yes, both federal and provincial governments have jurisdiction over fisheries, and that's been true since the time of the British North America Act of 1867. The question was raised early on as to the nature of the provincial jurisdiction versus the nature of the federal jurisdiction.
The federal jurisdiction generally is to create the offence. The provincial jurisdiction is essentially to deal with licensing and the breaches of the licensing amendments or licensing provisions. Control of the resource is for the province to determine, but the criminality or the misconduct related to the taking of the resource would be an area of federal jurisdiction.
The federal government would have the authority, just as they do with respect to animals generally, to create an offence with regard to cruelty to animals, whether they're domestic animals or wild animals, but the province could issue licences with respect to the management of those animals themselves.
It's a very similar kind of jurisdictional dispute, jurisdictional overlap, so there is overlapping jurisdiction. There is no question about that, and in this case, the legislation in the bill recognizes and respects the right of provinces to create exemptions by issuing licences to operators to be able to do certain things that the lieutenant governor in council of each province would authorize them to do.
All right. I'm not trying to be difficult. I'm trying to find a way for me to go ahead and support a piece of legislation that at the outset looks as though it could be flawed in some ways.
I'm a former park worker. I love animals. I dedicated a portion of my life as a conservation officer to protecting and conserving wild places and wild spaces. I know that a number of zoos, for example, have captive breeding programs. Take a look at Elk Island National Park, for example, in my home province of Alberta, which is unlike any other national park, yet a park fee still applies to that park. You can go in and see bison basically in captivity, because it's a fenced park. It's not a natural park where they are free to go wherever they want, and it's the same with the bison. Those bison from Elk Island National Park were used to establish a wild herd in Banff National Park.
I'm just wondering about precedence when it comes to the pieces of legislation.
I'm not going to argue or debate what people who know more about the science of cetaceans in captivity might do, but I'm here to discuss the merits of this piece of legislation.
I'm wondering if these conversations came up in the Senate examination of this bill. Unlike Elizabeth May, I don't know if three hours in the House of Commons—the elected chamber—is enough to properly scrutinize the bill, notwithstanding that the Senate has done a thorough job. I'm not disputing that.
I am a little bit concerned that we're going to have three hours to examine this bill with witnesses without hearing from the minister, or without hearing from other people who we would normally hear from in a legislative process. I'm just trying to figure this out as the best I can in the time I have.
We have people who are willing to pay money to see animals in a national park. National parks have a mandate to protect and preserve species, even in captivity. If the legislation that we have before us today actually applied to elk, bison or anything like that, it would be a very different scenario, where zoos would have to apply for permits and apply for things that they would otherwise be able to do as a matter of normal business. No one's questioning the integrity of a zoo or no one's questioning the integrity of a national park, yet we're questioning the integrity of these other organizations that are providing entertainment. I'll get to my point about that as well.
When I took my family to go whale-watching once, we paid several hundred dollars apiece for the privilege of going out and taking a look at a whale in the wild. If I were to take my family to SeaWorld or something like that if I'm on a holiday, my family would have the same experience without actually disturbing any animals in the wild for a fraction of that cost. Children attending schools that would want to go to these things would be able to attend at a fraction of the cost if there happened to be one in the area.
Have any of these things been brought up in the Senate? What has the response been from those who want to defend this bill?
The Arabian unicorn was down to six animals and is now over 1,000 because of a captive breeding program. Now people can actually go into the wild and see them. Had they not gone through that captive breeding program there would be none, frankly, for anybody to see or to enjoy. At this particular point in time the Arabian unicorn would likely be extinct.
Again, I'll go back to my concerns with the legislation. I'm not concerned about the intent. I'm not concerned about what good is trying to be done here. I'm worried about the precedent. It's not like other elements of animal welfare in the Criminal Code, like cock-fighting, dog-fighting and actual human abuse of animals. One's definition of what constitutes abuse is what's actually in question here and whether keeping an animal in captivity is abusive. I don't know, I keep my dog in my house and nobody is.... They're different animals; there's different research and I get that.
I'm wondering about the precedent. As I read it, it doesn't allow for anybody to do anything like captive breeding unless they actually get a permit and they have to apply for a licence to do that. The exceptions that are here that allow somebody to actually be in possession would have to meet the test. For example, if something catastrophic were to happen to a pod of dolphins that need to be rescued.... I know that it says here that on the individual basis, an individual who has the custody or control of cetacean—that's an individual cetacean—“that is kept in captivity for the purpose of providing it with assistance”, but nothing about keeping a population or rescuing a population.
Has that been given any thought in the Senate?
I'd just like to respectfully point out that the price to go and see these animals in captivity is actually more than going to see them through many of the whale-watching companies around the world. That argument, then, is often null and void.
Also, in terms of abuse, we have documented extensive abuse of these animals. I am looking for the unicorn whale. I'm looking for that individual in all of these facilities that I've been to around the world that doesn't show through its own behaviour that it has been abused.
We have substantial scientific evidence that shows that these animals are severely compromised biologically, behaviourally and welfare-wise. In fact, Marineland Canada cannot meet a single one of the five freedoms, which is the absolute minimum we look at for welfare in animals in captivity or in your own home.
I think there has been a substantial amount of evidence provided by a number of different expert witnesses to the Senate. They have done an extraordinary level of background research on this, and I think they have presented it to you in a very robust manner.
Your arguments are very valid about these animals—the other species that have been bred in captivity for release into the wild. However, it's worth noting that no one in Canada is doing this.
Also, despite the fact that this is breeding going on at Marineland, those animals come from Russia from a depleted population, probably depleted because of the captures that were made there for the aquarium industry. Those animals are not going back to Russia. Most likely they can't be released into the wild, because they were born in captivity and they don't have the survival skills.
Dealing with a carnivore—like a fish-eating whale—is different from dealing with something like the oryx you were talking about or the bison that are herbivores. You need a different set of life skills—
It's a huge honour to be joining your committee. I've met many of you on our tour to the east coast to study the decline of the Atlantic salmon and the Atlantic cod.
I also want to thank my colleague from Port Moody-Coquitlam for his nine years sitting on this committee and the important work he's done advocating for our salmon and all of the species in our oceans.
I come here from a coastal community. I certainly understand the pressures on our oceans right now and on the species that live in them.
I want to thank retired senator Moore for bringing this forward and Senator Sinclair for continuing to pursue seeing this bill get adopted and this legislation passed.
Before I get started, Ms. Visser, I also want to acknowledge the tragedy that's happened in New Zealand. On behalf of the New Democrats, we send our condolences to all kiwis and Muslims in your country.
Maybe I will start with Senator Sinclair. This bill has had more than 17 meetings and 40 witnesses, I believe. Do you believe that this has been studied enough, that it's ready now to continue to move forward?
I have other questions here, so I will have to move on from that.
During our constituency week last week, I was informed about a bit more of the story of J50, a female orca that was evidently very ill and eventually disappeared after some interventions to give her medicine, etc., but obviously, they didn't work.
There appear to be complications because of the lack of symmetry between what we can or can't do in Canada versus what they can or can't do in the United States. In the case of the southern resident orcas, they go back and forth across the border.
Is there anything in the Senate bill that would look to the need to consult with our neighbours to see if we can come up with something that's going to be useful and consistent?
Okay, we'll start again.
I'll welcome our guests. From the Department of Justice, we have Joanne Klineberg, senior counsel, criminal law policy section. From the Department of Fisheries and Oceans, back with us again, we have Adam Burns, director general, fisheries resource management. From the Department of the Environment, we have Carolina Caceres, manager, international biodiversity, Canadian wildlife service.
Welcome to all three of you. We'll start off with your opening statements of seven minutes or less.
Ms. Klineberg, would you like to go first?
I would like to thank the committee for the invitation to speak to Bill , an act to amend the Criminal Code and other acts (ending the captivity of whales and dolphins), also known as ending the captivity of whales and dolphins act.
This bill proposes amendments to the Criminal Code, the Fisheries Act, and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, WAPPRIITA.
Before I address the substance of Bill , it's important to review the number and location of cetaceans held in captivity in Canada. To my knowledge, there are two facilities in Canada that hold cetaceans in captivity, the Vancouver Aquarium in British Columbia, and Marineland in Niagara Falls, Ontario. The Vancouver Aquarium has one cetacean in captivity, a 30-year old Pacific white-sided dolphin. It was rescued from the wild and deemed non-releasable. In January 2018, the aquarium announced that it would no longer display cetaceans at its facility.
The majority of Canada's cetaceans in captivity are located at Marineland in Ontario. My understanding is that it has approximately 61 cetaceans: 55 beluga whales, five bottlenose dolphins and one orca or killer whale. In 2015, the Province of Ontario enacted legislation banning the possession or breeding of an orca whale; however, the prohibition provided for an exception for the possession of the orca currently in captivity at Marineland.
With that context in mind, my remarks this afternoon will focus on Bill 's proposed amendments to the Fisheries Act. I will let my colleagues from the Department of Justice and Environment and Climate Change Canada respond to your questions concerning the bill's proposed amendments to the Criminal Code and WAPPRIITA.
Having said that, I will briefly outline the bill's proposed amendments.
Bill proposes amendments to the Criminal Code that would make it a criminal offence to own or have custody of or breed a cetacean, or possess its reproductive materials. Cetaceans currently in captivity would be grandfathered under the bill. There's an exception to the captivity prohibition for cetaceans that are injured and require assistance, care or rehabilitation, or when captivity is deemed to be in the animal's best interests as determined by provincial authorities. The bill's prohibition on breeding or possessing a cetacean's reproductive materials would not be grandfathered.
The bill's proposed amendments to the Fisheries Act would prohibit the moving of a live cetacean from its immediate vicinity for the purpose of captivity unless it is injured or in distress and in need of care.
Bill 's proposed amendments to WAPPRIITA would prohibit the import and export of a live cetacean or its reproductive materials unless authorized by the Minister of Environment and Climate Change for scientific research purposes or if it's in the cetacean's best interests.
With that as an overview of the bill, I will now turn my attention to the proposed Fisheries Act amendments in Bill .
The capture of cetaceans from the wild falls within federal jurisdiction, and specifically falls under the authority of the Minister of Fisheries, Oceans and the Canadian Coast Guard. The committee may want to consider how the provisions in Bill , which was approved by the House, and is currently in the Senate, addressed the objectives of Bill ; that is, phasing out the captivity of cetaceans while building in exceptions for the rescue and rehabilitation of those animals.
The government introduced Bill , an act to amend the Fisheries Act and other acts in consequence, on February 6, 2018. Included in the amendments were provisions related to the captivity of cetaceans. Specifically, Bill C-68 contains a prohibition against fishing for a cetacean with the intent to take it into captivity, except where authorized by the minister for animal welfare reasons.
It's important to note that as a matter of policy, Fisheries and Oceans Canada has not issued a licence for the capture of a live cetacean for public display purposes since the early 1990s. The proposed amendment will simply codify the department's long-standing practice.
In addition to the cetaceans in captivity provision, Bill contains a new authority to make regulations with respect to the import and export of fish. Cetaceans are defined as fish for the purposes of the Fisheries Act. The department's view is that this regulation-making authority would give the government more discretion to determine the circumstances under which cetaceans could be imported into and exported from Canada. For example, there could be an import prohibition where the purpose is to keep a cetacean in captivity.
By way of exception, import or export could be permitted where the purpose is to transfer the cetacean to a sea sanctuary should those facilities be established in the future. There may also be circumstances where the captivity of a cetacean is deemed necessary to conserve or protect the species.
Like Bill , Bill contains a non-derogation clause affirming that none of the proposed amendments affect the existing aboriginal and treaty rights of aboriginal peoples protected by the Constitution.
, the former minister of Fisheries, Oceans and the Canadian Coast Guard, acknowledged that the amendments to the Fisheries Act proposed in related to the fishing for cetaceans with the intent to take them into captivity were inspired by and in particular by the work of now retired senator Moore.
That concludes my remarks. I thank you once again for the invitation to speak on and will be happy to take your questions.
If I understand your question correctly, nothing prevents a person who has possession of an animal from doing their utmost on their own to adhere to the best scientific standards and so on and to do whatever is in their power to take care of the animal.
If I'm reading between the lines of your question, I think the question is, what can governments do, and what types of laws are there that apply to these types of situations?
In the area of animal welfare, as Senator Sinclair hinted at in his testimony, there is overlapping federal criminal jurisdiction and provincial jurisdiction over animal welfare, so there are laws in all the provinces, including, obviously, Ontario and British Columbia, which are the two provinces that have facilities that house cetaceans, that are general animal welfare legislation.
In much the same way that provinces have legislation for the protection of the welfare of children, these provinces have jurisdiction and they have legislation over the protection of the welfare of animals as well. But again, just because a matter might be approached through a provincial lens doesn't necessarily mean that there isn't federal jurisdiction in the area of criminal law, so there are, at present, offences in the Criminal Code that prohibit causing unnecessary pain, injury or suffering to an animal. Those would apply to pretty much any animal, so they're already in place, but those offences require proof that a particular animal was made to suffer pain or injury through the actions of individuals.
Thank you for being here today. Unfortunately, we've only got you for an hour. The Senate had three years on this bill, and we get three hours, so we're trying to cram a whole lot of stuff into one short day here.
One thing concerns me, and the entire paragraph has been mentioned a number of times, so I won't read the whole paragraph, but it's in proposed subsection 445.2(4). It deals with an exception and who would be excepted.
Every one commits an offence who promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition
The word I want to focus on is “promotes”.
The question has been asked: If someone goes outside the country and views a whale or dolphin show, and then comes back and puts it on their Facebook page, can you unequivocally say that that would not be considered as promoting that type of an event? Unequivocally?
Welcome, everybody, to our final hour on the study today on this particular motion.
I welcome all our guests.
By video conference, we have Dr. Hal Whitehead, professor, Biology Department, Dalhousie University.
As well by video conference, we have Dr. Laura Graham, director, WRG Conservation Foundation.
Here in person, from Ocean Wise, we have Clinton Wright, executive vice-president and chief operating officer, aquariums; and Dr. Martin Haulena, chief veterinarian.
Here from Marineland of Canada Inc., we have Mr. Andrew Burns, legal counsel.
We're going to start off with our seven-minute presentations by video conference.
We'll go to Dr. Whitehead first, for seven minutes or less. Go ahead, please.
My name is Hal Whitehead. I'm a professor at Dalhousie University and co-chair for marine mammals of the Committee on the Status of Endangered Wildlife in Canada, COSEWIC. I have been studying whales and dolphins in the wild since 1974, with a particular focus on their behaviour, ecology, social structure, culture, populations and conservation.
Fundamentally, scientists study whales and dolphins to understand their biology and to promote their conservation. Much of this research is done at sea, often with technologies such as underwater microphones, tags and drones. Usually this research is observational, but sometimes scientists manage manipulative experiments at sea. There is also research on whales and dolphins in captivity. Much more of this research is experimental.
Experimental science tends to be more definitive than observations, but set against this is the unnatural setting of captivity, which often makes interpretation of the results problematic. This is particularly the case for whales and dolphins, as the captive environment is especially unnatural. Captive whales and dolphins live in a space that is less than a millionth—and in the case of killer whales, less than a billionth—of the area of their natural home ranges. Rather than facing a wide range of living prey, they are typically fed dead fish.
These are extremely acoustic animals. That's how they sense their world and how they communicate. Concrete tanks are debilitating echo chambers. Whales and dolphins are also extremely social, and by some measures, more social than us. The captive social environment is utterly different from their social life in the wild. These, and other factors, make much of the research on captive whales and dolphins problematic, and have led most scientists not connected to the captivity industry, some philosophers, and much of the Canadian public to consider the captivity industry unethical.
Research in captivity has given us lots of interesting insights into the nature of the animals, especially their physiologies and cognition, although there is continuing uncertainty about how these results refer to animals in the wild. Most important captive results come from dedicated research facilities, such as those at the United States Navy and the University of Hawai'i, not display facilities. Ethical standards for scientific research are tightening, and research that was standard is no longer considered ethical. Studies of animals in captivity provide little of value for conservation of wild animals. They tend to ask the wrong questions about the wrong species.
As examples, I'll consider reports on the status of two emblematic Canadian whale species, members of which are held in captivity. In the 2015 COSEWIC status report on the endangered St. Lawrence belugas, about 1.4% of the main text of the report refers to captive animals. This is made up of one paragraph plus one sentence summarizing information on belugas in captivity and one reference to captive research in determining age of sexual maturity. There are seven references to wild studies for the same result. In the DFO recovery strategy for this population, reference to captive belugas is even less.
In the 2008 COSEWIC status report on the killer whale, including the endangered southern resident population, about 2% of the main text refers to captive animals. There is one sentence on mating seasonality and one sentence referring to the gestation period drawn from captive studies. Of the seven citations for a statement on the effects of noise, one was from captive studies, six from the wild. All other references to captivity in the report concern the negative effects of removals from wild populations for oceanaria.
In the 2011 DFO recovery strategy for the southern resident killer whales, there is one paragraph referring to diseases in captivity.
Thus, while studies of whales in captivity have given interesting and sometimes academically useful information, their contribution to the conservation of Canadian species has been virtually zero or negative if the effects of wild captures are considered.
Moving beyond Canada, captivity has been considered for the two most desperately and critically endangered of cetaceans: the Yangtze River dolphins, or baiji, and the Gulf of California harbour porpoise, or vaquita. As a last-ditch effort, plans were made to round up the last few individuals and keep them away from the harm that we humans are doing them in the wild, but for neither species was this successful. One is extinct; the other almost certainly doomed to extinction.
Past research on captive animals is being replaced by new techniques in the wild, including experiments. For instance, controlled exposure experiments on wild animals have given major advances in how we understand the effects of underwater noise on whales. If this bill passes, the cetaceans currently in captivity will still be available for research. Additionally, some animals will enter captivity for rehabilitation, and there may be rescued animals in semi-captive sanctuaries, both opportunities for gaining knowledge. In addition, computer modelling is also replacing some captive animal studies.
In summary, if captive displays of whales and dolphins end, our ability to conserve the animals in the wild will be virtually unaffected. And although studies of captive whales and dolphins have informed us about the species and their biology, much or all of this information stream can now be replaced.
I would like to thank the committee for this opportunity to voice my concerns about Bill , to ban cetaceans in captivity.
Specifically, I want to make sure the committee is well informed on the critical role that scientific research on cetaceans in captivity plays in the advancement of the management and conservation of captive and wild cetacean populations.
My background is in wildlife physiology and captive breeding for endangered species. That is the area on which I will focus. One of the areas that I am an expert in is developing non-invasive hormone techniques to use in wildlife to assess reproduction and welfare. I collaborate with various zoos and aquariums with their captive population to develop and validate these techniques, then we can apply them to the captive population. We can also adapt them for use in wild populations. Think of home pregnancy tests for women, where we just measure the hormone in the urine. In this case, we're collecting urine or feces from the species in a non-invasive way.
I want to point out a couple of examples where this is critical to advancing our knowledge about cetaceous species, including our critically endangered cetaceous species.
Article one, which I have provided you, is an example of these techniques that have been developed in dolphins. These non-invasive hormone techniques, which have been developed for some cetaceous species in aquariums, in collaboration with aquariums, have provided some critical information.
This includes critical information on our own southern resident pods of orca on the west coast that are listed as endangered under the Species at Risk Act. They are the most polluted mammal on the planet and for several years have been declining in numbers, as you all know.
Various measures have been taken to reverse the population decline, including reduced tourist activity based on the unsubstantiated assumption that tourism-associated stress is negatively impacting their recovery. The decline has continued. Everybody's seen the viral picture of the mother carrying her dead calf around for weeks.
A colleague of mine has used our non-invasive hormone techniques that have been developed in captive animals to study this particular population of orca. His study has determined that the female orcas are actually getting pregnant, but they are losing their calves. They are losing the fetus or their newborn to malnutrition. That is not something that you can get just from observational studies.
As far as the tourist boats go, the study has indicated that the stress hormones of this particular population actually are at their lowest during the peak tourism season. This is in article two, which I have provided for you, that was published by Sam Wasser in 2017.
These orcas are getting pregnant, but they are losing their fetus or newborn because of malnutrition. Using the information that came from this study, we are now able to pinpoint the most important threat to the survival of this orca population: the declining salmon stocks. I want to emphasize that we would not have this technique to use on this critically endangered population without having captive orcas to study the hormone patterns for the species.
Another example would be the St. Lawrence beluga. Again, like the orcas, its population is declining for unknown reasons, although various measures have been undertaken to try to attempt to reverse this decline, including reducing tourism activity. It would be possible for us to do a very similar study to what was done with the southern resident pod of the orca; however, we would need to have a captive breeding population of belugas to validate the techniques. This proposed legislation would obviously prevent us from carrying out this research.
I have focused just on two examples, because they're of immediate Canadian concern and that's my research area of expertise.
The previous speaker was also talking about some of the field research, so I want to remind everybody that much of the techniques used for that field research were developed and validated on captive populations under captive conditions.
Indeed, the vast majority of what we know about cetacean biology is based on research in captive populations and is critical for rescuing cetaceans in dire straits. I'm glad the Vancouver Aquarium is going to be here because they can talk about their contribution to the conservation and management of wild cetaceans and how their research has been critical to that. I have provided the open letter from the list of scientists, in defence of the research done by Vancouver Aquarium when they were attacked by the anti-captivity people, and I strongly encourage you to read it.
A great deal has been suggested about the reduced welfare of cetaceans in captivity and there's no doubt some institutions should definitely be closed. However, in modern accredited zoos and aquariums, great strides have been made to maximize the welfare of animals in their care using science. For example, in the proposed legislation, there's a ban on cetaceans performing for the public under the assumption that it's stressful, yet research, which is article three that I have provided to you, has indicated that dolphins do not act stressed in anticipation of training and performance.
Another investigation comparing wild dolphins to captive dolphins actually indicated that captive dolphins were healthier than the wild dolphins. That is in article four, which I have also provided to you.
In my extensive experience, accredited zoos and aquaria are far more eagerly pursuing research into animal welfare than most other animal industries, including the food and companion animal industries. Another example of the research would be article five.
The CCAC has developed guidelines for the care and use of marine mammals that could be implemented as regulations to ensure that the highest standards of welfare are met in captive cetaceans and allow science to continue to guide the evolution of these standards. Indeed, colleagues of mine in the U.S. are currently doing a scientific study involving more than 300 captive cetaceans held in seven nations to determine the factors that are critical to improved cetacean welfare, with the aim of improving it around the world.
Vancouver Aquarium was going to participate in this international study until the Vancouver parks board banned them from housing beluga, so Canada will not be part of this international effort.
In conclusion, I want to dedicate my testimony to the critically endangered cetacean species I already mentioned, the vaquita. There are fewer than 10 left and the population is expected to become extinct in a few weeks, as the fishing season peaks. We could have saved them. If we had started years ago when the population started to crash, we could have learned more about them and we could have set up a captive population. We could have saved them from extinction, but now they're going to be gone forever and that is shameful and unforgivable.
Good evening, honourable members of the committee.
I am Clint Wright, chief operating officer of Ocean Wise, which includes the Vancouver Aquarium.
Thank you for inviting me. I appreciate the opportunity to comment on Bill .
I'd like to acknowledge that we are on the ancestral lands of the Algonquin people.
I don't think that I need to tell you, the members of the Standing Committee on Fisheries and Oceans, that there are many species of cetaceans in trouble in Canada and around the world. When it comes to the state of our oceans, we're racing against time.
When the Vancouver Aquarium appeared before the Senate committee to discuss this legislation in 2017, we talked about our efforts to win that race. We've been at the forefront of conservation-based research in the Pacific, the Arctic and the Atlantic since 1956. Our collective body of work has contributed to the protection and recovery of wild cetacean populations in Canada through input into significant policies, regulations and best practices.
Central to the conversation, as it was then, is our unwavering commitment to animal welfare. It is the reason that I, as a marine biologist, have dedicated my life to studying and safeguarding our vulnerable ecosystems.
In the 62-year history of the Vancouver Aquarium, a lot has been gained and a lot has changed. We lead one of the longest-running killer whale research studies in the world. The expertise we've gained over five decades of working directly with cetaceans has enabled us to be nimble in providing support to Fisheries and Oceans Canada on emergent cetacean rescues.
Having connected more than 45 million people to cetaceans so that they would take steps to protect what they've learned to love, the Vancouver Aquarium made a decision last year to no longer display cetaceans. It has also been nearly 30 years since the last wild-caught cetacean was brought to Vancouver, a practice that no longer exists at accredited facilities in North America.
This brings me back to the topic of Bill . As it is currently worded, the legislation will have unintended negative consequences and prevent us from doing our best for sick, injured and endangered whales, dolphins and porpoises in Canada.
My concerns are threefold.
First, the provincial approval requirement from the lieutenant governor and other provincial bodies adds a layer of complexity in the event of an emergent cetacean rescue, when DFO calls on the Vancouver Aquarium marine mammal rescue centre for support to save a stranded, injured or ill cetacean. Time is of the essence in these scenarios, and often these rescues take place in front of the public. We've learned through experience that added delays are problematic.
The same is true for acquiring provincial approval to conduct research during a rescue as part of the veterinary care and rehabilitation. Again, it adds another layer of complexity, delaying urgent care to a very sick animal.
Second—also on this point—to the best of our knowledge, there is no provincial legislation in B.C., hence a provincial cabinet would not be able to provide authorization or delegate authority. As the federal department that oversees ocean protection and cetacean welfare, our partners at DFO are likely the best ones to speak to the federal permit process.
Third—and perhaps even more troubling in my view—the bill does not adequately provide for the protection and care of endangered species and populations. As in the case of J50 and the southern resident killer whales, which Dr. Haulena will speak to in greater detail, or the belugas in the St. Lawrence estuary, extraordinary measures to save species may soon be needed.
I would like to see the bill amended to include an exception for ex situ conservation programs.
It's impossible to predict what the future will hold, but based on recent history, there is a growing need for this work. I urge this committee to consider amendments to Bill so that this critical work can continue now and into the future.
Good evening. On behalf of Marineland I will focus on three issues of concern, for the committee's consideration.
In its present form, this bill violates the Charter of Rights and is unconstitutional.
First, Bill does not provide for a proclamation date. It becomes law immediately after royal assent, and many otherwise lawful activities will immediately become criminal offences.
Specifically, proposed paragraph 445.2(2)(a) makes it a criminal offence to own, have the custody of or control a cetacean that is kept in captivity. The bill does include an exception in relation to cetaceans that are kept in captivity at the coming into force of proposed paragraph 445.2(2)(a) and that remain continuously in captivity thereafter. The offence provision therefore does not apply to whales presently alive at Marineland.
The bill goes on to create another exception, permitting the holding of cetaceans, subject to the issuance of a licence issued by the province in which the cetaceans are held. The bill does not, however, provide any period of time for a licensing regime to be implemented prior to the Criminal Code offence being created upon royal assent.
These provisions of the bill give rise to a serious practical problem arising solely from the natural reproductive cycle of the beluga whales living at Marineland. This issue was clearly and directly raised in my testimony to the Senate committee considering this bill on May 16, 2017, when I stated:
But if a beluga whale is pregnant prior to the date of the bill coming into effect and gives birth after the bill comes into effect, the birth of that beluga whale triggers the commission of a criminal offence.
“Birth” is the operative word.
With respect, this is not about whether proposed paragraph 445.2(2)(b), prohibiting breeding prior to the law coming into effect, constitutes a crime after; it is an issue under proposed paragraph 445.2(2)(a) as to when Marineland comes into possession, ownership or control of a new baby beluga whale.
We are not arguing, as is suggested by Senator Moore or the DOJ lawyer, that somehow proposed paragraph 445.2(2)(b), concerning breeding, is relevant. What we are saying is that proposed paragraph 445.2(2)(a) is relevant. Marineland comes into possession, ownership or control of a new baby beluga whale at birth—presumably—after royal assent, assuming the bill is passed into law this spring.
The Supreme Court of Canada and Criminal Code subsection 223(1) address directly and clearly this issue in relation to the birth of human children. Under subsection 223(1), a child becomes a human being within the meaning of the Criminal Code when it has completely proceeded, in a living state, from the body of its mother.
The birth of a beluga whale will be interpreted no differently. To suggest otherwise is to state that beluga fetuses have greater rights under the law than human fetuses. A new baby beluga whale is a new and separate entity on the date of its live birth, not one day before.
It is acknowledged by the DOJ lawyer that this act provides that no new whales will be allowed to be born following royal assent to this bill.
Consequently, when the currently pregnant beluga whales give birth in 2019 and 2020, Marineland and, arguably, all the staff and independent marine mammal veterinarians who aid in the deliveries and care for newborn beluga whales will unavoidably and immediately be committing a criminal offence. This cannot be otherwise avoided by Marineland. The gestation period for whales is approximately 16 months. Whales are already pregnant. Pregnant mothers cannot be moved or disturbed without risking their lives. They certainly cannot be transported to another jurisdiction without killing them.
With respect to the “breeding” provision prohibition under proposed paragraph 445.2(2)(b), the whales are self-organized at Marineland into family groups—more than 50 whales. There are no free pools. Assuming the bill passes, Marineland is being told to tear family groups apart and separate mothers, fathers and children in 24 hours. That is impossible, and no one wants that to happen.
Surely, it was never the intention of the drafters of this bill that Marineland would be rendered totally incapable of complying with the Criminal Code, automatically becoming guilty of Criminal Code offences and left in continuous possession of illegal whales born in 2019 and 2020. It also cannot be suggested that the drafters of this bill intended to create a situation that forces the attempted abortion of baby beluga whales or the euthanasia of pregnant mothers as an alternative to criminal conviction.
We believe a simple, reasonable solution that will have no impact on the purpose or intent of the bill is to amend the bill to provide for a realistic proclamation date. However, if the bill is passed in its present form, it will create a statute which, by its terms, makes compliance impossible and the consequence a criminal conviction. Such a statute violates the principles of natural justice and violates section 7 of the charter. The bill, in its present form, is unconstitutional.
The second issue, which, again, does not impact the stated purpose of the bill, arises as a consequence of the very broad wording of proposed subsection 445.2(4). The issue here is not Marineland's compliance but broad effects on average Canadians. The wording creates a criminal offence for everyone who takes part in a show that is purely for entertainment purposes. This includes swimming with dolphins. While this may not violate the Criminal Code when posted to Facebook by a Canadian who has swum with dolphins on vacation, it will demonstrate the violation of Canadian law and will certainly impact “good character” clauses in employment contracts in the academic sector, the public sector and other settings.
In addition, promoting or receiving money for such shows implicates every major airline in Canada that promotes resorts or swimming with dolphins. Travel agents who book these types of events will be receiving money for doing so, which is expressly prohibited. These offences occur in Canada. At least one major Canadian company owns Atlantis, Paradise Island, which operates under Bahamian law and offers swimming with dolphins. Receiving money from this will be criminal.
This appears to go well beyond the stated purpose of the bill, ending captivity of cetaceans in Canada.
Good evening, everyone. Thank you for inviting me. I appreciate the opportunity to address Bill .
I'm Dr. Martin Haulena. I'm head veterinarian at the Vancouver Aquarium, as well as at our national marine mammal rescue centre, both part of Ocean Wise. Ours is the only rescue centre in Canada able to rescue, rehabilitate and release marine mammals, including cetaceans, the taxonomic group of animals that includes all whales, dolphins and porpoises.
I'd like to use a recent example of our work to explain my concerns about Bill in its current form, and its potential impact on our efforts to save endangered whales in Canada. Last summer, I spent the better part of the month in the San Juan Islands, located between Vancouver Island and Washington state, taking part in a rescue effort for a small killer whale known as Scarlet, or J50, according to the naming system for killer whales, off the west coast.
J50 was four years old, a member of the critically endangered southern resident killer whale population. Based on her emaciated body condition, she was very sick. Veterinary intervention with free-ranging animals isn't something we ever take lightly, but time is running out for this group of whales. There are only 75 of them left, as has been mentioned a few times. Based on what we know about them and their environment, we understand that environmental threats, including pollution, underwater noise and lack of prey, are causing their decline. The Department of Fisheries and Oceans is also taking actions to address those issues, but for this population of whales, the time needed to reverse the impact of these threats—
I shall be quick. Thank you.
For the population of these whales, the time needed to reverse the impact of these threats might be too great. J50 was a young female, with her reproductive years still ahead of her. While the chances of saving her were slim, we believe these iconic killer whales are worth our very best effort. In extreme cases like this one, veterinary intervention or, should it become necessary for an endangered species or population, an ex situ conservation program, in which we take members of an endangered population into human care for protection, could be our last best hope.
J50 was not the first cetacean patient at the marine mammal rescue centre. Others range from Springer, the young whale rescued and returned to her home off the north coast of Vancouver Island in 2001, to harbour porpoises, dolphins and a false killer whale in 2014. In 2017, members of our team were asked to help return an endangered beluga whale to its natural range in the St. Lawrence estuary, after it became trapped in the New Brunswick river system.
With our oceans warming, prey becoming harder to find, and the impacts of industry and development increasing, there's little doubt that more marine mammals will need help in the future. In every case that we respond to, we work closely with, and under the authority of, DFO, or NOAA in the United States. In the case of J50, it was with both federal governments.
Our team also continues to build capacity to respond to marine mammals impacted in the event of an oil spill. In almost every one of the past nine years, we've joined research expeditions in the Arctic to gather data about narwhals and their rapidly warming environment, at the request of DFO.
These are just a few examples of how we are directly conserving species and improving welfare for wild cetaceans in Canada. It is important to note that we are the only not-for-profit team of first responders in the water, performing life-saving rescues when a cetacean is left stranded along our shorelines.
We've provided some suggested amendments to you. I hope you will consider them seriously. Thank you. I really do believe it's important to all of us here that we do the best we can for these incredible animals. I think we can all agree on that. I appreciate your time and consideration.