FISH Committee Meeting

STANDING COMMITTEE ON FISHERIES AND OCEANS

COMITÉ PERMANENT DES PÊCHES ET DES OCÉANS

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, May 28, 1998

• 0920

[English]

The Chairman (Mr. George S. Baker (Gander—Grand Falls, Lib.)): I'll bring the committee meeting to order. I understand the members from the Progressive Conservative Party are on their way, as well as a few more Liberals.

We're dealing today with consideration of Bill C-27, an act to amend the Coastal Fisheries Protection Act and so on. We have witnesses before us today. We'll pass it over to the junior minister of the Department of Fisheries and Oceans, MP Wayne Easter from the province of Prince Edward Island.

Mr. Easter.

Mr. Wayne Easter (Parliamentary Secretary to the Minister of Fisheries and Oceans): Thank you, George.

To put it into perspective, I'll go through an opening statement similar to what the minister gave yesterday, but I'll introduce the witnesses first. Howard Strauss is with the Department of Foreign Affairs' legal branch; Earl Wiseman is director general of international affairs at DFO; and Nadia Bouffard is a legal adviser at DFO.

Bill C-27, the implementing legislation for the United Nations agreement on straddling fish stocks and highly migratory fish stocks, paves the way for Canadian ratification of the agreement. We cannot overemphasize the importance of this United Nations fisheries agreement and what it can accomplish in the cause of conservation and protection of straddling fish stocks and highly migratory fish stocks for this generation and for future ones.

Canada played a lead and key role in the establishment of a UN conference that led to the negotiation and development of the UN fisheries agreement in 1995. It was signed by 59 states and requires 30 states to ratify the agreement for it to come into force. So far 18 states have ratified the agreement. As a leading force in oceans management, Canada must be among the first 30 states to ratify the agreement.

Bill C-27 proposes to amend the Coastal Fisheries Protection Act and the Canada Shipping Act to bring the UNFA enforcement regime into Canadian legislation. Bill C-27 provides the necessary authority for Canadian enforcement officers to enforce the UNFA regime on the high seas.

The UNFA creates a high-seas conservation and enforcement regime for the harvesting of straddling fish stocks and highly migratory fish stocks by vessels of states that have signed and ratified the agreement. The agreement supplements the 1982 UN Convention on the Law of the Sea, which was ambiguous with respect to straddling fish stocks and highly migratory fish stocks.

There have been some misconceptions about UNFA and about Bill C-27. We would like to clear up some of them through the discussion here today.

First, under the Law of the Sea, salmon is categorized as an anadromous species as opposed to a straddling or highly migratory fish. UNFA uses the same terms as the Law of the Sea and deals with straddling and highly migratory fish stocks, not with anadromous species such as salmon. UNFA therefore does not cover Pacific salmon, so UNFA could not be used to resolve Canada's dispute over Pacific salmon.

Second, Bill C-27 is not removing what is now there. Bill C-27 is a new tool for enforcing international conservation measures on the high seas against vessels of states that are party to UNFA.

Bill C-27 will allow Canada to implement outside Canadian waters its obligations under UNFA and other fisheries treaties to which Canada is a party. It does not allow Canada to implement its own regime outside Canadian waters. That's not the intent of UNFA.

As was stated earlier, UNFA and Bill C-27 deal with straddling and highly migratory fish stocks. They do not deal with continental shelf rights, which are subject to existing international law as well as domestic law. When fully implemented, the United Nations agreement will allow Canada to deter unauthorized fishing of straddling fish stocks and highly migratory fish stocks on the high seas.

• 0925

As the minister said yesterday, he urges, and we urge, members to continue supporting this important legislation and the strong measures we are taking to ensure the conservation and protection of our fisheries and oceans resources.

Thank you, Mr. Chairman. Unless any of the other witnesses have a statement, we'll open it up to questions.

The Chairman: Thank you, Mr. Easter.

We have, of course, Mr. Earl Wiseman. Everybody knows Mr. Wiseman. He's the director general of the international affairs directorate, fisheries management. We also have, from the Department of Foreign Affairs and International Trade, Mr. Howard Strauss, who is the director of oceans, environmental and economic law division. Plus we have—

Perhaps Mr. Wiseman could tell me who else is at the table.

Mr. Earl Wiseman (Director General, International Affairs Directorate, Fisheries Management, Department of Fisheries and Oceans): Thank you, Mr. Chairman.

Nadia Bouffard is a legal adviser in the Department of Fisheries and Oceans who has expertise on domestic law and the bill itself.

Perhaps, rather than go through a long opening statement, Mr. Chairman, I could just say that a deck has been distributed that highlights the main elements of the agreement and of the bill. Mr. Easter has touched on some of the main points, and we can deal with those through questions rather than going through the entire deck.

But I would like to point out that the committee should be aware that UNFA itself is really a good-news story. It's a significant accomplishment for Canada. The idea of an international agreement to deal with straddling stocks is one that came out of a meeting of just a few people in 1988, and a few people in Canada decided to try to put together an initiative to develop support throughout the world to build an international consensus.

This was done through a number of means: publishing papers; organizing international conferences of experts—there was one in St. John's in 1990; and working with NGOs, provinces, industry, and members of Parliament. In fact you, Mr. Chairman and Mr. Matthews, were part of delegations of members of Parliament who visited Europe to promote interest in resolving the problem of foreign overfishing and in dealing with straddling stocks.

All of these initiatives led to getting the issue on the agenda in 1992 at the UN Conference on Environment and Development, UNCED, which led to conferences in New York, which led to UNFA. So we should be very proud here in Canada of the efforts that have been undertaken by ministers, members of Parliament, NGOs, industry, provinces, and officials, all working together to accomplish something that is really quite significant and of significant value for Canada in terms of dealing with major problems we have had in the past with foreign overfishing of straddling stocks.

I won't get into any more specifics of the deck. I hope you've had a chance to review it. On the basis of Mr. Easter's comments, we'd be prepared to answer any questions you may have.

The Chairman: Thank you, Mr. Wiseman.

Mr. Stoffer, who's the New Democratic Party critic for fisheries from the province of Nova Scotia, attempted, before the committee, at another meeting, to table an amendment to the legislation, with the explanation that the bill restricts—according to Mr. Stoffer—the government's ability to prosecute foreign nations that violate management of straddling fish stocks on the nose and tail of the Grand Banks and the Flemish Cap.

So perhaps we should go to Mr. Stoffer to straighten up that matter, and then we can go back to each one of the committee members, so we can get that out of the way. Mr. Stoffer explained to the committee in great detail that there are two clauses of the bill that make it so that Canada, if this bill passes, would have to get the permission of the foreign state.

Mr. Stoffer, I don't know if I'm putting this in the right words. This is what I understood you explained to the committee on a couple of occasions and notified us that you were moving amendments about.

Mr. Stoffer.

• 0930

Mr. Peter Stoffer (Sackville—Eastern Shore, NDP): That is correct, and those will be moved when we have more of our members here and a further explanation from Mr. Wiseman.

But on page 11 of the book you handed out, sir—and this is very good, by the way; it's very well presented. Thank you. It mentions notification to flag state. I had presumed anyway that if we're outside the 200-mile limit as an enforcement agency and we see a ship belonging to the UNFA organization committing a violation— why would we have to notify the flag state? Why don't we just do what we should be doing and stop the illegal practices that we allege them to do, and then proceed to notify the state after we've brought the ship in, similar to what we did with the Spanish Estai, for example, without firing any shots and so forth?

Mr. Earl Wiseman: Thank you, Mr. Chairman.

I will deal with the second part of your question in just a moment.

Mr. Chairman, you mentioned that there were two places in the bill where there was reference to notification of the state. One of them had to deal with notification of the state if this was a vessel that had been involved in a violation of a Canadian fisheries law in Canadian fisheries waters. But at the time we did not have a patrol vessel available to be able to board that particular vessel, and so we may have seen the vessel through aerial surveillance, for example, in our zone, but we were not able to board it or take any enforcement action.

Under this bill we would be able to seek the permission of the flag state to board that vessel on the high seas for an offence that has taken place in Canadian waters.

Under current, existing international law we could ask a flag state for permission to board its vessel and it would likely just turn its head and say no. They would feel no obligation. They would have no sense that they would have to cooperate with Canada to do this. With UNFA it does create a legal framework that does imply an obligation to cooperate in terms of dealing with any offences that may occur by their fishing vessels, and it would be much more difficult for a flag state to deny. Should they deny, it would raise certain questions that we would need to follow up with the flag state.

So it does provide an additional power in that proposed section 7.01, which is the one that deals with vessels that may have committed an offence within Canadian waters.

The issue on page 11 of the book relates to notification to the flag state when we have found a serious infringement. If we see a vessel that's out there fishing and we think it's committing an offence, there's no notification required for us to stop the vessel, for us to board the vessel, for us to inspect the vessel, and for us to determine whether in fact an infringement has occurred or not.

Where the notification requirement comes in is if it is a serious infringement. Then we can, by being on board the vessel, remove any illegal gear, seize any evidence that may be required, and detain the vessel for three days while we are awaiting the response of the flag state.

The purpose there is that one would assume that most responsible countries, when they are aware that one of their vessels has committed an offence and evidence has been gathered to prove that an offence has been committed, would take the responsible action and would perhaps call their vessel back. Or they would take over control of that vessel, conduct their own inspection, and apply their own domestic laws on their own domestic fishermen, and that is what UNFA is. That is the first step.

Should the country take their responsibility seriously and take over control of the vessel, then the Canadian inspectors would be turning the vessel over to the flag state for appropriate enforcement and we would expect that appropriate enforcement action takes place. Should we have difficulties and feel there are no appropriate enforcement actions, there are—and this is one of the most valuable parts of the entire UNFA agreement. For any areas where there are disagreements or disputes on conservation and enforcement matters, we can go to dispute settlement. We can seek an independent view as to whether appropriate actions were taken should we choose to do that.

So what we're really doing is notifying the flag state that we've caught one of your guys. They have a choice to say, Canada, bring it into port, conduct a more thorough investigation, gather additional evidence, which you may turn over to us at that point, or, send the vessel home, or, we have a patrol vessel in the area and we'll take control of the vessel. There are a number of responses that a responsible state can make, and that is what the notification procedure is about.

• 0935

Mr. Peter Stoffer: I thank you for that, Mr. Wiseman, but when you were saying that, it's almost like I'm sitting down to have a T-bone steak and I have no teeth in my mouth to chew on it.

You say “most responsible countries”, but as you know, with the battles out there on the oceans now and the depleting fish stocks worldwide, there's nothing in here that actually would stop, right away, thieves from stealing huge tonnes of quotas of fish. You just admitted we didn't have a patrol vessel. We have two large coasts, or, actually, three large coasts, and we have one little patrol vessel messing around out there trying to do something. And you said, “should the country take action”.

We're hoping. We're assuming. All this bill gives is hope and maybe and what if. There are no real hard facts. There are no guts to this.

Canada, as you know, on both coasts, has huge crises within our fishing coastal communities. We're paying billions of dollars in adjustment programs to these people to stay at home, more or less, or get them out of the industry, and at the same time our own country won't enforce or at least put some teeth behind it.

At least when Mr. Tobin was here he had the balls to go up there and do something internationally. After that, everything else has been watered down to appease these foreign nations. Why wouldn't Canada go to the table and say to these people, “Get lost—the next person out there we see doing this, we're going to haul their ass in and we're going to seize the assets; we're going to put them in jail”? It only makes sense.

If a Canadian shrimp boat was anywhere near the Gulf of Mexico trying to put a net in to try to catch shrimp, how long do you think the Americans would allow that individual to stay there? Not very long. In Canada we have to go to the table and sit there and say, please, maybe, what if. It's almost like we're going down on bended knee.

I'd like you to respond to that, please.

Mr. Earl Wiseman: I understand your perception. I respectfully disagree.

Mr. Peter Stoffer: Okay.

Mr. Earl Wiseman: First of all, Mr. Tobin was the minister who was involved in negotiating UNFA and I think stands firmly behind it as something that is a significant tool for Canada and for the world to deal with the problem of fishing of straddling stocks and highly migratory stocks on the high seas. In fact, it does have significant teeth, if you want to use that term, in that parties to this agreement are making commitments under international law to take responsible actions in the management of fish stocks on the high seas and enforcement on the high seas. This was part of the international negotiation to arrive at this agreement.

You used an example of a Canadian vessel going down to the Gulf of Mexico and trying to fish for shrimp. If they were fishing in U.S. waters, clearly that's a violation of U.S. law and they would be arrested by the United States Coast Guard, just as if any vessel came inside the Canadian 200-mile zone and attempted to fish, we would arrest that vessel and we would take appropriate action. If they were fishing outside of any coastal state's territorial waters in the mid-Atlantic, for example, if there was an international organization that was involved in managing stocks there and they were parties to UNFA who were involved—and the United States has ratified UNFA and is a party to UNFA—then UNFA provisions would apply on that Canadian vessel in that area. So the United States would have as much authority to act as Canada would have to act under this particular international agreement.

I think the other aspect of your question is reflecting a situation that existed in the late 1980s. The world has changed significantly since then. There has been much more recognition of the state of international fisheries resources, resources in coastal state waters and on the high seas. There have been a number of initiatives, not only the UNFA initiative, but initiatives through the UN Food and Agriculture Organization, on establishing international regimes for compliance for fishing on the high seas.

Coastal states and flag states are finding they need to apply much more stringent rules on their own fleets in their own waters, and they recognize that having two sets of standards, which did exist in the past—which meant go and fish freely on the high seas, we don't care, but you behave in your own waters—doesn't really work, because if fishermen feel they have a message that they can cheat somewhere but they can't cheat somewhere else— they feel they can cheat everywhere.

• 0940

So governments everywhere are clamping down. They're basically sending out a consistent message now that cheating is not acceptable anywhere.

In fact, we see that even in the northwest Atlantic. Since the agreement that resolved the turbot dispute in 1995 and the adoption of new rules in NAFO in 1995, there have been significantly fewer violations occurring out there. The serious problems we saw before 1995 are just not occurring any more. There is no blatant massive overfishing taking place. There's no government supported and assisted overfishing through abusing objection procedures. There is a well-controlled international fishery following internationally established rules.

When individual vessels are caught committing offences, the U.S. is taking action, because a number of the factors in the UNFA bill are already in NAFO. NAFO almost served as a bit of a testing ground for some of these ideas that became part of UNFA—the idea of boarding and calling in the flag state.

Canada has boarded vessels in the NAFO regulatory area. We have found offences. We have called in inspectors from other countries. They have inspected and have found violations, and vessels have been removed from the fishing grounds. Being removed from the fishing ground is a significant sanction. If you have to travel two weeks and are not able to fish and you have a crew of 20 or 30 people, that in itself is a significant sanction and a major deterrent.

Vessels are starting to cooperate and behave because they don't want to face this deterrent. Even if they get home and it's found that the offence they've committed isn't as significant as perhaps the one that was perceived at sea, they don't want to face these long voyages home or these long voyages into port where they're losing money. So the deterrent aspects of UNFA are very important, and this is something we have to keep in mind.

Secondly, should there be a disagreement by a party to UNFA and they deny there are rules, refuse to abide by rules and don't enforce the rules, we have a dispute settlement procedure that can be used rapidly under the UNFA bill, and that's something we don't have now. If we'd had that in 1995, we probably could have used it to avoid having conflict. We would have been able to bring the European Union before an international tribunal and have the issue resolved before there was conflict. We have that with UNFA.

The Chairman: Before you ask the final question, Mr. Stoffer, I'm somewhat confused, and other committee members are confused. We have to deal with Mr. Stoffer's allegation. I believe that's shared by the chief critic for the Reform Party of Canada as well, and also the Conservative Party.

Mr. Stoffer claims that under this bill a protection officer who believes a fishing vessel from another state that is found in an area of sea designated under this bill, proposed subparagraph 6(e)(ii)—and I notice the word “suspects” has been changed throughout the bill to “believes”, and I'd like one of the legal experts to tell us why—has engaged in unauthorized fishing in Canadian fisheries waters— before the enforcement officer can take any enforcement action consistent with this act, the enforcement officer can only do it with the consent of the participating state.

That's Mr. Stoffer's point, and he notified the committee several times that he wants to remove the portion that says “with the consent of the participating state”. I think that was Mr. Stoffer's question in the beginning, Mr. Wiseman. I was trying to follow your answer. I understand what you're saying, but it doesn't address Mr. Stoffer's question.

• 0945

According to this bill, do we have to get the consent of the nation that the vessel has committed an offence under this act and get their permission before we can take any enforcement action? Is Mr. Stoffer right or wrong?

Mr. Earl Wiseman: Mr. Chairman, one can interpret your question in two ways. If a foreign vessel is found within Canadian waters, and we believe an offence is being committed, a Canadian protection officer can board that vessel, can inspect that vessel, can arrest that vessel, and can bring that vessel into port without notification of the flag state. We have full sovereign jurisdiction on these fishing vessels that may be fishing illegally, or fishing in contravention of the Coastal Fisheries Protection Act, in Canadian waters. I think we have to make that absolutely clear. What this bill is doing is giving us an additional authority, which is something that exists under international law.

Perhaps I'll ask Mr. Strauss to explain a bit about the concepts under international law. Simply saying, should this vessel be on the high seas, outside of the jurisdiction of Canada, this bill is giving us an additional step that may lead to some success in getting that vessel back into Canadian jurisdiction and that we do not have now.

The Chairman: That's fine, but let me just read on the record what Mr. Stoffer keeps asking.

Mr. Easter.

Mr. Wayne Easter: Perhaps you could allow Mr. Strauss to come in.

The Chairman: Just a second now, Mr. Easter.

Look, proposed section 7.01 of the bill, page 6, reads:

A protection officer who believes on reasonable grounds that a fishing vessel of a participating state found in an area of the sea designated under subparagraph 6(e)(ii) has engaged in unauthorized fishing in Canadian fisheries waters may, with the consent of the participating state, take any enforcement action that is consistent with this Act.

Go ahead, Mr. Strauss.

Mr. Howard Strauss (Director, Oceans, Environmental and Economic Law Division, Department of Foreign Affairs and International Trade): Thank you, sir.

Most of UNFA and most of the bill before the committee deals with a situation where events occur outside the 200-mile zone. This provision deals with a different situation. It deals with a situation where a foreign fishing vessel is spotted inside the Canadian 200-mile zone and the concern is that it's fishing improperly—without a licence, for example—and is spotted, for example, by a tracker plane.

Under international law, if the foreign fishing vessel then leaves the zone and seeks to go home, for example, and we have a fishing vessel in the area, then we can give what's called “hot pursuit”. We can immediately go after the vessel. If we catch the vessel outside the 200-mile zone, anywhere on the high seas, we can take enforcement action against that vessel.

If, however, we do not have a patrol vessel in the area, or if the patrol vessel decides that other things are more important, then the foreign fishing vessel leaves. It just goes. Then it is found, some time later, to have come back into the NAFO regulatory area. Then, under international law, Canada does not have a right to board that vessel. Under international law, the hot pursuit did not take place, and we have to ask the consent or authorization of the flag state to take action with respect to that vessel.

That provision is recognized in UNFA, article 20, paragraph 6. It's stated just that way. In that type of situation, the coastal state has to ask permission of the flag state in order to take enforcement action against the vessel.

• 0950

Proposed section 7.01 is here to reflect the provisions of UNFA, which is the purpose of the whole bill; that is, to implement UNFA. And 7.01 is here to ensure that there is domestic authority for Canadian enforcement officers to act, because unless there's authority in Canadian legislation, they're not empowered to do anything. Right now, that is the case.

So that's the purpose of 7.01. It deals with that particular situation where a foreign fishing vessel is sighted inside the Canadian 200-mile zone, leaves—and there's no hot pursuit—and comes back within the NAFO regulatory area. At that point, we're in a position to approach the vessel, but under international law, we need the consent of the flag state to do so. That's clearly reflected in UNFA, and the provision in the legislation is designed to reflect that; it's a provision to give our enforcement officials the domestic legal authority to act.

The Chairman: Okay. So in other words, the vessel commits the offence in Canadian waters, then goes out to NAFO regulatory waters, Mr. Strauss, and at that point, has committed the offence in Canadian waters—that's inside 200 miles—and then goes into the nose and tail of the Grand Banks, outside 200 miles. At that point we need the consent of the flag state in order to take enforcement action. Is that what you're saying?

Mr. Howard Strauss: Yes, if there has not been hot pursuit. If we had a patrol vessel in the area and the patrol vessel saw the foreign fishing vessel inside the Canadian 200-mile zone, pursued it and caught up with it, only inside the NAFO regulatory area, we don't need anybody's consent.

The Chairman: But an airplane—

Mr. Howard Strauss: If an airplane spotted it and two weeks later we saw the same foreign fishing vessel inside the NAFO regulatory area, then we would need the foreign state's consent.

The Chairman: How about if the plane saw it one day and by the time the enforcement officer got out there in a patrol vessel it was the next day, but it was out on the nose of the Grand Banks? Would you still need the consent of the participating state?

Mr. Howard Strauss: If there is an interruption you would. If the tracker plane spotted it and kept it under surveillance and you sent a patrol vessel out to go get it, you would not need the consent.

The Chairman: But the spotter plane can't stay out there because it only has a range of 800 to 900 kilometres and it has to go back to refuel. It just can't stay in the air—unless it has some sort of refuelling in mid-air, and I don't know if we have that for our tracker planes. Mr. Stoffer, do we have that?

Mr. Stoffer, we'll give you one final question after Mr. Strauss has his say, and then we'll move on. I hope this is sufficient for the committee with respect to your concern.

Mr. Peter Stoffer: I really appreciate them attending today and giving us their answers, but again, I still hold to my allegations that it's extremely weak.

And please, panel, don't ever think that my party and I are not in agreement with agreements with other international companies to preserve and protect fish stocks. We are absolutely 100% behind that. We just want to put a lot of teeth behind it.

Mr. Wiseman, would Mr. Tobin—you mentioned his name so I'll mention his name—be in favour of Bill C-27? You don't have to answer that now, but I have a feeling that he would have some serious objections with the revised bill that's here before us now.

Also, sir, you mentioned the fact that if a Canadian ship were in American waters it would be prosecuted and brought in just like it would be in Canada. Is that right? That's exactly what you said.

Well, sir, there was a question we asked you last time we saw you—and you said you'd get back to us and we haven't had the answer yet—about off Labrador and Black Tickle and the foreign trawler that was catching turbot. Mr. Anderson had a letter written—I would assume somebody wrote it for him and he just put his name to it—to Newfoundland stating that there was no ship off the coast of Black Tickle at that time. We found evidence to the contrary and DFO had to reiterate—

You just said, sir, that any ship's crew doing that would be arrested, just like they would be in the United States. I put it to you, sir, that I don't believe that for a second, because we don't have the patrol vehicles or the enforcement officers to do the job. We don't even come close to being able to protect our waters. It's a major fault of Canada's that we are not even able to preserve and protect our own boundaries.

• 0955

You also said that ships caught in violation with respect to other countries would be taken out of the seas. If there's evidence, I would like it, if it's at all possible, sir. Could you provide the committee with those documents in regard to the last two or three years and how many ships have been in violation? What were their fines? What happened to them? And where are those ships and those captains today? It would be very interesting to know that.

You're saying that things are better out there now, and probably they are. No doubt things have greatly improved since the 1960s and 1970s, but the last time you were here you provided us with a very great opportunity to see where the foreign trawlers are off the Flemish Cap and Grand Banks. There were 35 trawlers there, 35 trawlers fishing off the Flemish Cap and the nose and tail of the Grand Banks. I put it to you, sir, that's not an improvement at all. There shouldn't be any of those trawlers out there fishing in that kind of manner, raping and pillaging our oceans. That's one of the major problems.

I'll leave it at that.

The Chairman: Your time is up, Mr. Stoffer. I'm going to give time to Mr. Strauss, who wanted to answer, because a lot of what you just said is opinion—

Mr. Peter Stoffer: I know, I know, but—

The Chairman: To ask Mr. Wiseman to talk about Mr. Tobin and so on— Mr. Strauss wanted to say something, and then we're going to go to the Reform Party, as we should, and then the Bloc.

I wonder if Nancy could come up here for a second.

Go ahead, Mr. Strauss. Sorry.

Mr. Howard Strauss: Thank you, sir.

The point of principle is that where there is continuous hot pursuit one doesn't need permission to board the vessel. Where there's an interruption, one does.

What would qualify as hot pursuit would be something I would have to look at further in order to answer your question properly. I don't know whether that would qualify or not.

Mr. Earl Wiseman: Mr. Chairman, if I—

The Chairman: Do you know what determines “hot pursuit on the high seas”?

Mr. Earl Wiseman: What determines “hot pursuit”?

The Chairman: Oh, no, that's okay, Mr. Wiseman. Go ahead.

Mr. Earl Wiseman: I will just respond to some of the points Mr. Stoffer raised in general terms, because I think some facts may have been forgotten.

Mr. Stoffer raised this issue—and I know it's been raised several times to the minister—about the foreign vessel off Black Tickle. The information about the foreign vessel off Black Tickle was provided to the committee in documents last year and the letter written by the minister was written in January. So there was nothing really being hidden. An error was made.

The vessel that was off Black Tickle was a French vessel licensed by Canada. It wasn't committing any offence. There was no need to take enforcement action. We knew it was there and we knew what it was doing. It had an observer on board. There was nothing wrong there.

The “error” was that the minister was misinformed. That was the error. The question came at a time when the context of the question was about foreign fishing further north of Black Tickle, in area zero, and the person who drafted the letter was focusing on that—where there were no foreign vessels—whereas he ignored and forgot this one point about the French agreement. That was just an error. It wasn't that we didn't know what was going on. It wasn't that we didn't have the capability of knowing what was going on.

Presentations have been made to this committee that I think were very clear that in terms of what's happening in the northwest Atlantic, particularly in the NAFO regulatory area, we have, on a daily basis, on a virtually real-time basis, a knowledge of who's out there, where they are and what they're doing. There is not a problem in determining which vessels are there. If there are vessels out there involved in practices we have concerns about, we have the capability of boarding and inspecting those vessels, and we will have that under UNFA, with some additional authorities under UNFA. I want to make that clear.

If you feel that UNFA is not strong enough, is weaker— And when one goes into an international negotiation, parties may have desires to have— Canada may have wanted much more, but we have to bring the world along to a certain point, and this is the point that was reached. That's as far as we got internationally.

The point as I see it, I guess, is that this committee has to decide whether Canada ratifies UNFA and accepts these new international regimes, which will provide us with additional tools and additional measures we do not now have. Or do we say we won't ratify UNFA and to heck with it because it isn't good enough? That, I think, is the question. I don't think at this stage the possibility of reopening the international convention exists, for us to strengthen it or to change it.

• 1000

The Acting Chair (Mrs. Nancy Karetak-Lindell (Nunavut, Lib.)): Thank you.

Mr. Hilstrom.

Mr. Howard Hilstrom (Selkirk—Interlake, Ref.): I think that last comment you made is really quite enlightening in that you've done the best you can on this deal and it's a step forward from where it was. That's kind of reassuring.

On the question of the hot pursuit, if the normal hot pursuit definitions that we use in Canada apply, I don't see any problem with that. Certainly visual contact is sufficient.

Your reassurance, however, that the enforcement is good out there, and that these guys won't take much of a chance any more because they have two weeks to take their vessel home or whatever—the truth of the matter is that the profits to be earned determine how much risk a crook will take. You can look at the drug business or anything, and I'll tell you, if they can make a million bucks in a couple of days on the ocean without getting caught, they're going to do it. The concern that I'd have is certainly that the level and quality of the enforcement be at the absolute highest level.

Then the question will come up, I suppose, as to whether or not the enforcement level is going to be done on a user-fee basis. I don't know if that's appropriate for you people to be discussing, but you're free to comment on that.

We have dealt extensively with observer reports—people on these foreign fishing vessels and that. Does this agreement deal at all with the availability of those reports to committees like ours? There's also the question of whether or not it allows for more than one observer on a fishing boat.

The last question I have is with respect to the straddling stocks and the fish outside Canadian waters. What is the level of enforcement that's going to happen there? Are Canadian enforcement vessels going to be out there observing what's going on, and if they see a problem then notify the state and so on?

Perhaps you can comment on those issues.

Mr. Earl Wiseman: Thank you.

It is true—and this has been one of the difficulties in enforcement and control of fisheries around the world—that profits and high profits might encourage captains to take greater risks in terms of trying to get around the rules in order to maximize their profits. On the other hand, we have found through our experience that stronger sanctions and greater deterrents increase the risks and reduce the risk-taking by captains.

This refers back to the question that we were dealing with before, which Mr. Stoffer was referring to. We haven't had many occasions in the past few years of foreign vessels being sighted fishing illegally inside Canadian waters, which would lead to a hot pursuit.

In the 1980s we had many examples. We had literally daily incursions 10 to 15 miles into our zone, as fleets would seek to follow fish that migrated from outside 200 into our zone. We had significant enforcement activities taking place, and we had a number of hot pursuits. We followed a vessel once, and it was close to the Azores when we finally arrested it. That was in a hot pursuit, and strictly legal under international law. Other vessels for which we couldn't enter into a hot pursuit we couldn't deal with at all.

The way we dealt with this problem was that we raised the sanctions. The fines before that time were in the neighbourhood of $50,000 as a maximum that the court could apply. Before that time, if vessels were caught, they were getting virtually a slap on the wrist. They were paying an additional cost of operating, but making significant profits and taking the risks.

When we raised the fines to $750,000 per offence—and when you find a vessel that's fishing illegally inside Canadian waters, you charge it for illegal entry and you charge it for fishing without a licence—there was suddenly a potential maximum fine of $1,500,000.

You'd be perhaps not surprised to understand that suddenly these captains, who claimed that our maps were wrong or that they had problems with their satellites in determining where the 200-mile zone was, and that they were just accidental incursions—it was amazing how quickly they discovered exactly where the line was, and they didn't cross that line any more.

• 1005

So deterrence really does work, and UNFA is providing additional significant deterrents, and other states that are parties to UNFA are moving toward applying new deterrents and new sanctions.

The Spanish have before their Parliament right now new legislation to provide additional significant sanctions, including removal of licences from fishing vessels that are found guilty of violating international laws. I use that as an example because I know this committee refers to that. They think of the Estai incident. Many other countries are moving in that same direction to much more significant sanctions.

So I think we have to recognize that the use of UNFA and the possibility of having sanctions applied are going to create a significant deterrence for fishing captains.

You mentioned the cost of user fees for enforcement. That is something that's being discussed in NAFO in terms of more equitable distribution of enforcement costs that take place in the NAFO regulatory area. Part of the enforcement costs being covered now are states paying for observers. There are other issues being looked at, such as more states providing inspection platforms.

Not only Canada has two inspection vessels or more that go to the NAFO regulatory area; the European Union has at least one inspection vessel there for at least ten months a year. It does send at times other inspection vessels. The Japanese at times have sent inspection vessels.

So there are others out there trying to enforce the rules on all of the members of NAFO, and they will have additional authorities if they conduct inspections under the UNFA regime.

On the issue of observer reports, UNFA is silent, but UNFA does talk about the application of rules established by regional fisheries management organizations. NAFO has a rule about 100% observer coverage. NAFO has a rule about making that information available to enforcement authorities so that enforcement authorities know what's happening on board vessels. And that is happening. Should there be any resistance to that, should parties not want to comply with the NAFO rules, and they're parties to UNFA, they would then be subject to dispute settlement, because they have obligations to follow the rules established by the regional fisheries management organization.

If there were serious actions being taken that could be a threat to conservation, such as what occurred in the past, where there were objections to NAFO rules that may have led to massive overfishing, we could seek within ten days to get provisional measures established through the dispute settlement mechanism that would stop those vessels, and those states from allowing those vessels, conducting those kinds of fisheries.

So there's some real teeth in here in terms of being able to deal with problems that are out there.

I think I've touched on your questions on enforcement level and observer issues.

Mr. Howard Hilstrom: Okay. Let's use another little example here. A Canadian fishing vessel goes outside the 200 limit and is fishing away. Who takes care of the quota allocation to that in terms of enforcement, I guess applying to any quota enforcement on the high seas, and in terms of the hot pursuit issue, if there is somebody in authority to enforce out on the high seas, chasing into Canadian waters?

Mr. Earl Wiseman: First of all, a Canadian vessel that fishes on the high seas must, through existing regulations, as a condition of licence, abide by any rules established by an international fisheries organization. We've already adopted that through a condition of licence.

So a Canadian vessel that fishes in an area controlled by regional fisheries management organizations—NAFO, for example—can only fish there if Canadians have a licence or authority to fish that particular stock. The Government of Canada would give that authority to that vessel to fish. It would be done through the normal Canadian licensing procedure.

If a Canadian vessel wanted to fish somewhere else in the world that was managed by a regional fisheries management organization, such as in the northeast Atlantic, where we've had a couple of boats go to fish redfish, we will license them to fish there as long as they fish consistent with the rules established by the Northeast Atlantic Fisheries Organization.

• 1010

So we are fulfilling our international obligations, and if those vessels are there, and if there are rules in the international organization for boardings and inspections and so on, Canadian vessels must be subject to those types of inspections because they're following the rules of that organization. Any Canadian vessel that fishes in the NAFO regulatory area must follow the rules of NAFO. They can be inspected by a Canadian or they can be inspected by any other country that has a patrol vessel in the area.

In terms of hot pursuit, I don't believe hot pursuit can start on the high seas. Hot pursuit starts in coastal state jurisdiction and moves towards the high seas. Mr. Strauss perhaps can comment.

Mr. Howard Strauss: That's right.

Mr. Earl Wiseman: If a Canadian vessel was sighted by, let's say, an EU patrol vessel, and the EU patrol vessel believed that vessel may have committed an offence, but the Canadian vessel, shall we say, ran, and ran back into the Canadian waters— if the EU patrol vessel reported it to us, we would take it on as an obligation to stop that vessel to inspect it, to determine whether in fact an offence had been committed. If an offence had been committed, we would lay charges. If the vessel hadn't committed an offence, of course nothing would happen. I think that's part of responsible cooperation in an international field for the management and protection of these stocks.

The Acting Chair (Mrs. Nancy Karetak-Lindell): Mr. Bernier.

[Translation]

Mr. Yvan Bernier (Bonaventure—Gaspé—Îles-de-la- Madeleine—Pabok, BQ): I will try to be brief and touching this morning. I see people here who were present during the day we spent debating the bill. Questions were raised by the different members. I'm sure you made notes. Do you have the beginnings of any answers? I'll give you two examples of matters that I raised.

First, I find there's a lack of transparency when we're told that the regulations are issued by the Governor-in-Council. I'd like to have some examples. When Bill C-29 was passed previously, I believe, what regulations did the Governor-in-Council issue on boardings, more particularly? What were the methods and so on? I'd like to see that.

Secondly, there's something the bill doesn't mention. We're told it's to help us implement the United Nations' agreement on fisheries, but when you read that document you can see that it's not just a matter of boardings. There's also a whole management philosophy in there. Nothing is said about that. I find that's one of the great defects. I can tell you I'm disappointed. I can't go against motherhood and apple pie. As Peter was pointing out, we want the fish stocks to be protected and where teeth are needed, they have to be put in.

However, I'm wondering what Canada's management philosophy is in all that especially at a crucial time like the one we're going through now. Maybe it's a political question, but it's interesting. Wayne Easter is here as a witness this morning. He'll be able to tell us what the government's position is, then. If he doesn't have the answer for us today, maybe he could tell us what the work schedule is to deal with the situation? Shouldn't it have been done at the same time as the international agreement implementation?

I see that Ms. Bouffard is here. She was in the lobby when I gave my speech. I pointed out a few directions. I believe it was clause 5 of the agreement. In that agreement, for example, it says very clearly how the United Nations' agreement sees sustainable and profitable in-shore fishing. All very nice words, but how do we implement them in our waters, Mr. Easter? That's what I'd like to know.

[English]

Mr. Wayne Easter: Yvan, I don't think I'm in a position to answer your question. It's something the minister is certainly dealing with and looking into. I can't give an answer at this time, but I'll take it under advisement and bring it forward to the minister.

• 1015

[Translation]

Mr. Ivan Bernier: Wayne, do you have a copy of the agreement with you this morning? It's very important. I can't be against virtue, but as that's not what we're talking about, I wonder if I won't go so far as to recommend my party vote against it. It's too bad. I can't be against virtue, but I'm being offered so little of it I won't have anything to wrap myself in.

[English]

Mr. Earl Wiseman: Madam Chairman, Mr. Bernier asked two questions. I think I'll ask Nadia Bouffard to deal with the one about the regulations and the domestic law in terms of transparency, but perhaps I could comment on the management philosophy aspects of the UNFA bill.

We don't need legislation to pass management philosophy. What we need legislation for is to give authority to Canadian agents to take actions that they have no authority to do, and that's what the legislation is for.

When it comes to a key principle of UNFA, the use of a precautionary approach, that is something that will be adopted as a matter of policy in Canada and something that will be referred to and would be more in line with amendments to our new Fisheries Act, the bill that will deal with Canada's fisheries management.

In NAFO, because NAFO is made up of contracting parties, four of whom have already ratified UNFA and are committed to the principles, all of whom have signed UNFA and are committed to the principles, we are already working towards the establishment and the operation of the precautionary approach.

Two weeks ago, there was a meeting in Copenhagen of scientists and managers in NAFO on the application of the precautionary approach for the stocks that are in the NAFO regulatory area. There has been work done on applying the precautionary approach in ICCAT, the group dealing with highly migratory species in the Atlantic—tunas and swordfish, primarily. Again, we are working internationally to apply the precautionary approach. So the management philosophy in UNFA is being applied.

What the bill is seeking to do is to provide authorities, where legislative authorities are required, for Canadian agents, for protection officers, to have the legal basis for taking action.

[Translation]

Mr. Yvan Bernier: Hadn't we seen that already in the old C-29 on the protection of straddling stocks? We passed that in a day, I think with Mr. Tobin at the time. If we already have it in Bill C- 27, are we setting C-27 aside? What's the link between the two? I thought we had it and you're telling me we don't need legislation to allow the government to sign the agreement. I'm telling you quite candidly that I wonder what we're doing here this morning.

[English]

Mr. Earl Wiseman: Bill C-29 was an amendment to the Coastal Fisheries Protection Act in 1994. The Coastal Fisheries Protection Act, as amended, stands.

Bill C-27 is an amendment to the Coastal Fisheries Protection Act to add additional authorities so that Canadian enforcement officials will be able to implement UNFA. That's the purpose of Bill C-27, which is the bill we're dealing with.

On the issue of more transparency, I think that is our intention in terms of the amendments that are being proposed, to provide as great a transparency as we can to what is necessary in terms of implementing the UNFA bill, and we will be doing that as well through regulations. I think I'll let Madame Bouffard perhaps speak to that.

[Translation]

Ms. Nadia Bouffard (Senior Counsel, Bilateral Relations Division, Department of Fisheries and Oceans): To reiterate what Mr. Wiseman said, the bill is transparent in the sense that it involves implementation powers already in existence, such as the boardings you talked about. We're extending these powers to the high seas. The powers are in the Act. Regulations will provide the procedural details that will have to be followed in exercising those powers under the United Nations Agreement on Fisheries.

• 1020

For example, there's the matter of the three-day waiting period when you advise the foreign State. Well, those three days will be provided for in the regulations. But the requirement for this notice is provided for in the bill, as you know. Does that answer your question?

Mr. Yvan Bernier: No, I'm still hungry for more, but that's my problem. Nothing that is issued by the Governor-in-Council—I'm still referring to clause 6—is ever transparent enough in our eyes. We never see those things. They're not published and we don't get the opportunity to discuss them even though all these things are details. Details like the three days, the methods of boarding or the use of necessary force in these circumstances, all those things are of some concern to me.

Ms. Nadia Bouffard: The regulatory process is public. The regulations that will be passed under C-27 can be pre-published and there'll be a period during which the public will be able to comment. Then, there'll be an approval process by the Governor-in- Council which is essentially a special Cabinet group and you'll have final publication in the Canada Gazette. So the regulations, as such, are public.

Mr. Yvan Bernier: There can be pre-publication before the—

Ms. Nadia Bouffard: Normally, that's the process followed.

Mr. Yvan Bernier: Fine. We can try a little test here in the room to find out how many people read the Canada Gazette. Couldn't the committee make suggestions when we go to clause-by-clause of the bill? As that's the process you follow, we could go through a little extra exercise and automatically send a copy to the Standing Committee on Fisheries and Oceans for its consideration. I can tell you that I don't read the Canada Gazette every month. If that were one way of solving our problem, we'd go do our homework.

[English]

Mr. Earl Wiseman: I think we could provide a synopsis, try to get a summary of what the regulations will be, and send that to the chairman.

[Translation]

Mr. Yvan Bernier: Fine for that.

[English]

The Acting Chair (Mrs. Nancy Karetak-Lindell): You have half a minute left.

[Translation]

Mr. Yvan Bernier: My last question will be for Wayne. Mr. Easter, any idea about when the government will be discussing the "management philosophy" as set out in clause 5, I think? It's very important because it specifies that the countries make a commitment to sustainable and profitable in-shore fishing within the framework of an international movement. I must tell you that we haven't done our homework yet. I think that's important.

[English]

That's a warning.

Mr. Wayne Easter: I think the minister has already shown how committed he and the government are to management. The decisions that were announced on the Pacific coast were very difficult and tough decisions to make. They're the right decisions.

It's the same on the east coast. Tough decisions have been made every day in the management of the various species. As the minister says time and time again, his three priorities are conservation, conservation, and conservation, but when you're making those kinds of decisions and they impinge on the economic lives of people who want to put food on the table—fishing has been their traditional way of life—it does create some human consequences. The government is trying to deal with them as well, as you well know.

The Chairman: Our next questioner is the representative of the Progressive Conservative Party of Canada, Mr. Matthews.

Mr. Bill Matthews (Burin—St. George's, PC): Thank you, Mr. Chairman. I would just like to apologize for being a bit late.

As a matter of fact, the minister was here yesterday with some of his officials. I actually asked him a question about this. It was a matter of some concern I had, I guess, when the bill was introduced, as some of your officials already know. I just wanted to pursue this because there is still a misconception or whatever about this.

Say we board a vessel and detect a violation. I just want to run through this again to see if I can understand this. After boarding the vessel and detecting a violation, we notify the flag state. Is that correct? They have three days to respond. If they don't respond in three days, is that considered to be consent? Can they go ahead? If they respond and say they are going to take over, what happens then?

• 1025

Perhaps you covered it this morning. I apologize if you did.

The Chairman: No, this was not covered before, Mr. Matthews, I assure you.

Mr. Bill Matthews: So what happens if the flag state calls back within the three-day period and says we advised them of a violation and now they're going to take over? What happens then?

Mr. Earl Wiseman: We had some allusion to this in the earlier discussion. To be specific, one is assuming that the flag states who are signing on and accepting legal obligations by ratifying UNFA are serious about ensuring that their vessels are properly controlled when they fish on the high seas, that they're following the rules established by international fisheries management organizations, and that they're going to take what steps are necessary to ensure that those rules are going to be followed.

In fact, as I mentioned earlier, in NAFO, we already have this sort of system working. It already exists. Under the NAFO regime right now, if we board a vessel and we deem there's a serious infringement, we notify the flag state. The flag state has 72 hours to respond and take over control of the vessel and determine what's going to happen.

UNFA goes a little further than the current NAFO regime, but even with the current NAFO regime without the UNFA authorities, we have found that flag states have taken responsibility. The European Union has a patrol vessel in the area most of the time. It sends its patrol vessel. Inspectors get on board the vessel with ours being present on board. We together go through an inspection again and point out where the anomalies are that we found.

Should the European inspectors determine that in fact these serious anomalies have occurred, they take action. On a number of occasions, vessels have been called to return home. They have then undergone more thorough inspections. The vessel is offloaded, charges have been laid, and sanctions have been applied. As I mentioned earlier, the sanction of simply being called home is a significant deterrent that will make a captain think twice about committing an offence.

As well, the fact is that there are observers on board. Observers have access, and it's their job when they see violations of the rules occurring to contact an enforcement official to come in and conduct an inspection. Again, a captain is going to think twice about committing some serious violation when there's somebody on board his vessel who has the ability to make a call.

UNFA is adding additional powers, and these are all really deterrent powers. One would hope that captains will understand that cheating isn't going to pay any more and they're going to have to follow the rules. I think the deterrent aspect of this international agreement is significant, because if they violate the rules, there will be measures taken against them.

Say a state does not respond in an appropriate manner or doesn't take seriously—I'm not just talking about a Canadian inspector—any UNFA party that inspects a vessel and finds something wrong and reports it to that flag state. If that flag state just simply wants to ignore or not deal seriously with the problem, then dispute settlement is a crucial factor of UNFA. We can take that party to an international tribunal and deal with that issue.

Mr. Bill Matthews: What happens to the vessel if we board it, detect a violation, and notify the flag state that then doesn't respond in three days, or we don't hear from them? What do you do then? Do you bring that vessel into a Canadian port or do you get aboard our own vessel and leave that to this tribunal?

Mr. Earl Wiseman: No, we would bring it into our own port and continue to conduct an inspection. Should the flag state want to contest that there was a violation, we may decide to go to a dispute settlement on that. But if there's no response from the flag state within three days, we bring the vessel into port.

Mr. Bill Matthews: Mr. Chairman, I don't know if I'm over my time, but with your concurrence, I just wanted to ask Mr. Wiseman whether we have the resources available to us. It's one thing to have this agreement, which for the most part we support—I do anyway—but anything that improves conservation and protects our stocks I support. But do we have the resources available to us to piggyback on this agreement so that indeed we see some substantial or significant improvement? That's the question.

• 1030

It's one thing to go off and have 30 nations ratify an agreement, but if we don't have the resources to implement the agreement or bring it into effect, make it effective, then what's it all about? It would be a public relations game that people like you and I and others will say is a good thing, but nothing really happens to improve the situation outside 200. That's the big concern I have. How do you answer that?

Mr. Earl Wiseman: If we wanted to be the policemen of all the international organizations to which we belong and send out patrol vessels throughout the Atlantic to deal with protecting highly migratory species wherever they swim in the northwest Atlantic—which we could do, as members of ICCAT—or if we wanted to send out enforcement authorities to deal with all of these international agreements, we'd be extremely hard-pressed.

But if we establish our enforcement priorities, which are stocks off our coasts, and concentrate our efforts to deal with straddling stocks and highly migratory stocks as they swim by our coasts, we have the resources to cover that, we have been able to cover that, and we are covering that.

Mr. Stoffer earlier referred to the snapshot of activity that was occurring off our coasts several months ago. As of last week, I understand, on the nose and tail of the banks, we were down to fewer than 10 vessels. It goes up and down, but we're not talking about huge fleets out there any more, and we definitely can keep an eye on and manage those fleets.

The Chairman: Excuse me. On the nose and tail and the Flemish Cap, there are only 10 vessels, and this is at the end of May?

Mr. Earl Wiseman: No, Mr. Chairman, it's 10 on the nose and tail and 22 fishing shrimp on the Flemish Cap.

The Chairman: Oh, yes.

Mr. Earl Wiseman: But those are specialized vessels fishing under rules and fishing a specialized species there. They're not in any way dealing with the straddling stocks that are of concern to us and that are covered by— This bill only covers straddling stocks. It doesn't cover—

The Chairman: A lot of committee members, Mr. Wiseman, would argue that straddling stocks inhabit the Flemish Cap.

Mr. Earl Wiseman: Some Greenland halibut does; that's correct.

The Chairman: Okay.

Mr. Easter wants to ask a question of Mr. Stoffer, but before we continue, I'd like just one clarification. Before Mr. Stoffer gets at this again, because there's an amendment coming up and I think Mr. Easter wants to ask a question relating to this as well, I'd like to get this straight.

If Canada sees what we believe to be illegal fishing or unauthorized fishing taking place in Canadian waters and we do not have hot pursuit—in other words, we don't have a patrol vessel, but it's just sighted by a plane—and that foreign vessel then goes out over the line, so it's outside 200 miles on the nose or tail, then if we board that vessel, we have to get the consent of the flag state to take any enforcement action consistent with this act.

If the vessel we spot by a patrol vessel is outside 200 miles on the nose and tail of the Grand Banks and we believe there's been an infraction, am I to assume we also must get the consent of the participating state before we can take any enforcement action? In other words, as long as the vessel is outside 200 miles, we must have the consent of the participating state? And if it's not a participating state, then what action can be taken?

Is this correct? We need the consent of the participating state as long as that foreign vessel is outside 200 miles—say, on the nose and tail—and was not the subject of hot pursuit?

Mr. Strauss, do you understand my question?

Mr. Howard Strauss: I think so. Let me try.

The Chairman: Good. Okay.

Mr. Howard Strauss: If a vessel of a participating state is fishing in the NAFO regulatory area, then our inspectors can board the vessel and inspect. They don't need anybody's permission to do that. If they find a serious violation and they think further enforcement action is appropriate, then they have to go to the flag state. Depending on what happens at that point, the flag state may take over, and then the flag state is under an obligation to investigate fully and take an appropriate course of action. Or the Canadian fisheries authorities can be given the authority to continue the investigation, or if there is no response, then the Canadian fisheries enforcement authorities can continue to investigate.

• 1035

The Chairman: And if the participating state says no?

Mr. Howard Strauss: If the participating state says they're going to take effective enforcement action, then they take over the investigation and they do so. If we're not satisfied with how they're doing it, then we can take them to dispute settlement.

The Chairman: If it's not a vessel from a participating state, what happens?

Mr. Howard Strauss: If it's not a vessel from a participating state—

The Chairman: Say China.

Mr. Howard Strauss: —and not a vessel from a state that is a contracting party of NAFO, then this convention doesn't apply.

The Chairman: So we have no authority whatsoever to board that vessel and charge them?

Mr. Howard Strauss: Under this convention, under this law, that's right.

The Chairman: Under any law? Well, let's not get into that.

Mr. Stoffer.

Mr. Peter Stoffer: Mr. Hilstrom had one.

The Chairman: Oh, Mr. Hilstrom, I'm sorry.

Mr. Peter Stoffer: Official opposition.

Mr. Howard Hilstrom: I'm very congenial today, Mr. Chairman. I haven't insisted on any rights or anything.

The Chairman: I noticed that. Thank you.

Mr. Howard Hilstrom: There's one thing I just want to clarify, though we don't want to harp on all this for too long.

Other countries are also having to implement legislation in order to bring this forward. Do our closest good neighbours down to the south, the U.S., have legislation at this time, or are they proposing it or bringing forward implementing legislation? And if they are, does that legislation have the same notification clauses in it that we have in ours?

Mr. Earl Wiseman: Yes, other states have put in effect or are able to use existing legislation under their systems to ratify and provide the authorities to their officials to implement their obligations under UNFA. They would ensure that the notification requirements were followed—that is part of their international obligations—and they would be acting in consistency with that.

The United States has already ratified UNFA and it's therefore prepared to start applying it as soon as UNFA comes into effect. I understand the European Union Council of Ministers will be dealing with this issue on June 4. It has been agreed amongst the member states that the European Union will proceed towards the appropriate legislative amendments in various countries in the European Union, and the Council of Ministers should be approving this on June 4.

So other parties are moving towards the ratification as well and adopting whatever laws or regulations are required within their systems to be able to apply UNFA as they must, according to the obligations that are spelled out clearly in UNFA.

Mr. Howard Strauss: Perhaps I might add to that, Mr. Chairman, with your permission, just briefly.

Their legal systems are of course quite different. In the United States, for example, treaties are self-executing. They ratify a treaty and the treaty applies as domestic law in the United States, just like that. So it depends on the regime, and different regimes implement treaties in different ways.

Thank you.

Mr. Howard Hilstrom: They will notify Canada, though, if they do something on the high seas? I assume they notify the government, whatever the system is—the Prime Minister, DFO, or whoever.

Mr. Earl Wiseman: They will follow a procedure of notifying the Government of Canada should they spot a Canadian vessel on the high seas that they believe to be involved in committing an offence. They would have a right to board that vessel if it were in an international fisheries management area of which the United States and Canada are members. If they determine there's an infraction and further enforcement actions are required, they would notify Canada. Then we would have the three days to say, “Take the boat back to the United States and conduct a further inspection”—in other words, you can have it—or “Send us the evidence you have and we'll pursue the appropriate prosecution and inspection as required here in Canada”.

• 1040

The Chairman: Thank you.

We're going to go to Nancy Karetak-Lindell, but Mr. Easter had a statement he wanted to make before that. Go ahead.

Mr. Wayne Easter: A question, Mr. Chairman. I'm wondering if any of the three witnesses might be able to tell us what the implications would be, internationally and I guess domestically, if the clauses, with the consent of the participating state, were deleted from the bill. What are the implications of doing that, both on what we've already agreed to and on our enforcement abilities?

Mr. Howard Strauss: The purpose of the bill is to implement the treaty. If one deleted those provisions, it would mean that the bill was inconsistent with the treaty. If we acted on the bill in a way that was inconsistent with the treaty, it would mean that when reproached by the foreign state, we could not rely on the provisions of the treaty in order to defend our actions.

Mr. Wayne Easter: How would a foreign state challenge you on that, Howard?

Mr. Howard Strauss: There are binding and compulsory dispute settlement provisions in the treaty. They could obtain provisional measures, for example, so that we could be taken before the Law of the Sea tribunal within ten days of our action.

The Chairman: Did you say, Mr. Strauss, that in the case of a non-participating state—and could you tell us if that could be a major fishing nation in the world?—those nations fishing, say, on the nose and tail of the Grand Banks outside 200 miles, we would have absolutely no power over them whatsoever?

Mr. Howard Strauss: The treaties are consensual documents. States are bound under international agreements only if they wish to be. This treaty in fact contains some rather progressive elements of international law. States are only bound by it if they accede to it or ratify it. It could be a major fishing power. If it chooses not to be bound by the treaty, it's not.

The Chairman: Regarding Mr. Stoffer's point last week that if it were a nation that was not party to the agreement but a major fishing nation that went out and just fished unlimited amounts on the nose and tail of the Grand Banks, we would have absolutely no jurisdiction over those vessels under this agreement?

Mr. Howard Strauss: It would not be caught under this agreement.

The Chairman: Okay. Let's go to Nancy Karetak-Lindell.

Mrs. Nancy Karetak-Lindell: Thank you. In one of your earlier responses you were saying that notification was not necessary if it was a serious offence. Who defines the serious offence? Do we have our own definition in Canada as to what is a serious offence, versus a participating country that decides when they respond and take over the ship that it doesn't qualify to them as a serious offence?

Second, when we were doing committee hearings up in Nunavut we asked about enforcement in our waters, and we were told that they have never once seen a patrol ship in our area. If anyone wanted to fish within the 200 miles—and I know it's not even 200 miles, because they just split it in half between Greenland and Baffin Island—they probably could, because they've never had any patrol people there. We have one DFO employee to do all of Nunavut, which is a real challenge, and so I'm wondering how they would enforce anything in the northern Arctic waters.

• 1045

Mr. Earl Wiseman: The UNFA agreement defines what are serious offences—fishing without a valid— I perhaps don't need to read them to you, but it's section 21, article 11 that defines what serious offences are. All parties that are signatories or ratify UNFA know what the serious offences are. They're clear.

A voice: That's section 21.11 of the agreement.

Mr. Earl Wiseman: Yes, that's 21.11 of the UNFA agreement. It's not in the bill. The bill refers to the agreement, though.

On your question about there being no patrol vessel in waters off Nunavut and the possibility of foreign incursions there, there are more ways to enforce our jurisdiction than having patrol vessels. One of them is simply—and I think this committee is aware of this—if a Canadian fisherman sees a foreign vessel in Canadian waters, they let people know. Unless there's nobody around, some Canadian is going to see it and will let people know.

The other thing is, we do use extensive air surveillance and there are flights that do go to the north. So again, these aircraft have radar with ranges of 200 miles and they can sight vessels that may be in the area. If that is the case, we can then determine how we can pursue that particular vessel, should we find someone who is illegally fishing in our waters.

So there are enforcement methods to be able to determine whether there are foreign vessels illegally fishing in our waters, and if they are found, there are ways to deal with that.

The Chairman: Mr. Strauss would like to intervene.

Mr. Howard Strauss: Thank you. I would just come back for a moment, if I might, to the question that you put a moment ago. I might mention that the G-8 foreign ministers at the Birmingham summit encouraged the ratification of UNFA, and that includes most of the major fishing countries. Russia and the United States have already ratified it. Japan is part of that G-8 group of countries that are major fishing powers but don't have a major distant-water fishing capacity, like China, and there may well be problems, but probably not for Canada. That perhaps is some addition to the answer.

The Chairman: Has Iceland ratified it yet?

Mr. Howard Strauss: Yes, it has now.

The Chairman: Mr. Stoffer.

Mr. Peter Stoffer: Thank you again, Mr. Chair.

Correct me if I'm wrong. Is there anything in here that stops Spain, for instance, from registering their ships, say, of Ghanaian registry? They're part of UNFA, but a way to get around that, if they want to be pirates, is to put the flag of Ghana on the back of their boat and go fishing. Under international law, what you've just stated is that there's nothing we can do about that. Correct? That's one thing.

Second, Mr. O'Brien from Labrador mentioned yesterday that he's been told by observers in Labrador that there's a tremendous high-grading of very small shrimp not very far off the coast of Labrador.

You just said, sir, that we can, we will, and we do have good enforcement, very tough enforcement. If this is just happening not that far off our coast and we have to hear it in a committee hearing, well— He didn't mention that anything was done about it. I suspect quite well that DFO doesn't even know it's going on. If it does, what has it done about it?

It all sounds so nice—you know, we're going to get tough, we're going to do this. But where is most of the major fishing going on in the North Atlantic? Where is most of it happening? Most of it is happening not that far off from Canada.

When I look at an agreement like this, I'm thinking of fishermen and their families on the east coast all the way up from Baffin Island and Ellesmere and all the way back down to southwest Nova. If our country can't protect the interests of Canadians better than this bill, then we have a problem.

With Mr. Matthews, and I'm sure the rest of the committee, we want conservation. We want to be able to say to our great-grandchildren that they can go fishing, if that's possible. So we have to have conservation, we have to have proper environmental laws, we have to cooperate with other nations. There's no question.

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Correct me if I'm wrong; there's nothing in here— It's just that one of these UNFA nations can turn around, put another flag on their boat, register it somewhere else, and willy-nilly away.

When you talk about enforcement, I don't believe Canada is even committed—not with resources, not with manpower, nothing—to protect the conservation or to enforce these regulations and laws. Correct me if I'm wrong.

The last question I have is on what I had shown Nadia earlier, regarding the coastal protections act. You've had a chance to see that. Will that still apply under the new legislation?

I'm sorry I sound a bit negative or a bit concerned over this, but the fact is, having to ask a foreign state for permission, if they're part of the regulation, if they're part of our so-called club, when most of the fishing on the Grand Banks, at Flemish Cap—

You're saying there are 22 vessels fishing shrimp. I wonder how many of them will be Canadian. I suspect none. Correct me if I'm wrong.

We're going to sit here and go, well, guys, we want to play at this game, we're going to do this, we're going to sound tough, and we're going to have this agreement. At the same time, however, families—if you can just think of families for a second—are suffering big time because we don't have, I would say, the balls to get tough enough and tell these countries to get lost, that if they're fishing illegally, this is what is going to happen to them under Canadian regulations.

The Chairman: Before you answer, I think there are two questions here. One relates to the flag of convenience and the other relates to another act, a question concerning another bill. I'm not sure which one it is, but you understand which one it is.

The other political part of the question can be answered by Mr. Easter. I don't think it's fair to ask Mr. Wiseman or Mr. Strauss.

Mr. Earl Wiseman: I understand the feelings and the perceptions and the concerns about the livelihood of people who live in the coastal communities of Canada, and I think all of us share those. The purpose of this bill is to add another tool to our armament so that we can ensure there's greater protection for stocks that straddle our 200-mile zone and for highly migratory species. That's all this bill is intended to do, to implement an international agreement that is giving us more authority to do things that we cannot now do. That's why this is important, and it is an additional tool in our armament.

Some of the problems you've referred to are problems we're well aware of and have been working on for years. The question of reflagging was one that formed the basis of an international agreement in the FAO on states having to take responsibility to ensure that vessels that fly their flags comply with the rules of international fisheries management organizations.

That compliance agreement has led to greater compliance by states. It has led to some previous flag of convenience states to no longer issue flags of convenience to vessels that are going to fish in violation of NAFO rules, for example. It hasn't totally eliminated the problem, but it has significantly reduced the problem.

There have been no flag of convenience vessels fishing on the nose and tail of the Grand Banks since 1994. There are a few that fish on the Flemish Cap. NAFO decided last year to put in place a program that basically and simply says that any vessel that is sighted fishing in the NAFO regulatory area that is not a member of the NAFO organization, fishing contrary to NAFO rules, will not be allowed to land fish products in their countries.

That eliminates the market. If you had a Spanish vessel, for example, that reflagged in another country, that vessel could not go back to Spain and land that fish any more, which it may have been able to do before, because the European Union has adopted this NAFO decision.

So the economic incentive for these non-contracting parties is disappearing. Their markets are going. They can't make any money doing what they used to do. The number of vessels is dwindling and disappearing. That is a major accomplishment that we did accomplish in negotiations and agreement with the international community and NAFO.

Canada, of course, took measures back in 1986 to close our ports to these vessels so they wouldn't have the benefit of coming into Canadian ports, getting fuel, getting provisions, transshipping their illegally caught fish to a market, and making any profit. That, in our view, is a significant action to not only deter but stop this kind of action. We have not seen any major new reflagging taking place at all since 1994. As a matter of fact, the number of reflagged vessels has been decreasing.

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In response to your other question about observers and Labrador and high-grading, my responsibilities are in international fisheries, not domestic fisheries. There are no foreign vessels fishing shrimp off Labrador. There are no foreign vessels fishing shrimp in Canadian waters. The foreign vessel shrimp activity is only on the Flemish Cap. That's the only place they can legally fish for commercial fishery, and that's the only place they are fishing commercially, and all of those vessels have observers on board.

You talk about how we have to get rid of them all and how they're raping and pillaging. The vessels that are fishing in the northwest Atlantic today, and that have been fishing since 1995, are fishing under rules that are established by NAFO. Those countries have shares, have rights to fish. They have obligations to ensure that those vessels follow the rules and they have obligations to close the fisheries and have their vessels leave the area when their quotas are caught. Those countries have been following the rules. When quotas, or shares or rights to fish, have been exhausted, those vessels stop fishing. That has happened. That's one of the reasons why numbers are down. The amounts of fish to fish are not as high as they used to be. The state of the stocks is not very good, so significantly fewer vessels are coming over and significantly less fishing effort is taking place. The rules are being applied so they can't cheat, so they can't stay longer, and so fewer vessels come. The system is working.

The Chairman: By the way, Mr. Wiseman, the committee received complaints from Canadian crew members about certain practices. You said that the only foreign boats are fishing on the Flemish Cap. We received a complaint. A vessel called the Høgifossur was fishing in 3L for shrimp. I know that was on Mr. Stoffer's mind because we all got the letters. As I understand it, you answered that by saying that this is an experimental, developmental fishery by the Faroe Islands.

Mr. Earl Wiseman: It was a research vessel. It was doing research.

The Chairman: Every year it does research?

Mr. Earl Wiseman: It's not doing it this year.

The Chairman: But this year is not here yet.

Mr. Earl Wiseman: The research was done in November 1996 and early in 1997 until about this time, and it wasn't repeated in late 1997 and early 1998, so the trend of research is broken.

The Chairman: Sorry, Mr. Strauss wanted to intervene on something Mr. Wiseman said.

Mr. Earl Wiseman: There was just one last thing, the question about the Coastal Fisheries Protection Act. As I said earlier, the Coastal Fisheries Protection Act applies. This is simply an amendment, an addition to the Coastal Fisheries Protection Act.

The Chairman: Mr. Strauss.

Mr. Howard Strauss: Thank you. Just to add a bit on the issue of reflagging, we are trying hard to get very broad participation in this agreement. We frequently go out to other countries to try to encourage them to ratify the agreement, and the broader the ratification the more difficult it's going to be to find states to which one can reflag. I might mention that while it took some 12 years to get the Law of the Sea Convention into force, we hope to have this one in force within coming months.

Also, there are our efforts in the G-8 context to have endorsement of this agreement and encouragement for its ratification. That was a Canadian initiative we pushed and that we got into the foreign ministers' statement. It will, of course, help us when we ratify the agreement. It's easier to get others to ratify it if we've already done it. Also, the agreement itself provides that the states party to it should try to encourage others to comply with it, even if they're not parties.

An hon member: Has Japan ratified it?

Mr. Howard Strauss: No, they haven't.

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The Chairman: Do any of the other members wish to ask any further questions? Did any of the officials wish to say anything further? I think that's it.

I thank the officials for appearing here today. The meeting is adjourned until our next meeting.