FISH Committee Meeting

STANDING COMMITTEE ON FISHERIES AND OCEANS

COMITÉ PERMANENT DES PÊCHES ET DES OCÉANS

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, February 9, 1999

• 0911

[English]

The Chairman (Mr. Charles Hubbard (Miramichi, Lib.)): I'll call our meeting to order. Pursuant to an order of reference of the House dated Tuesday, May 5, 1998, we are resuming consideration of Bill C-27, an act to amend the Coastal Fisheries Protection Act and the Canada Shipping Act to enable Canada to implement the agreement for the implementation of the provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks and other international fisheries treaties or arrangements.

This morning we have a number of people with us to assist us as we go through the bill. I will open the meeting and ask for the parliamentary secretary. I believe he has an amendment for clause 1.

(On clause 1)

Mr. Wayne Easter (Malpeque, Lib.): Yes, I do, Mr. Chairman, but there may be a fair bit of confusion.

We also have several witnesses here this morning to assist in proceeding through this bill.

The clerk of the committee has outlined basically how we'll try to proceed through the bill. The difficulty is that many of the amendments don't come in order, so there will be some jumping back and forth in the bill. Several amendments are consequential, so when you make one amendment they cause consequential amendments in several other areas. I think the way the clerk has outlined it, we'll be able to deal with that reasonably effectively.

I'd like to move that Bill C-27 in clause 1 be amended by replacing lines 2 to 10 on page 3 of the bill with:

“participating state” means a foreign state or an organization of foreign states prescribed by regulations;

Are people clear on that? I'll explain the reasons why.

[Translation]

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): I think one of the first things we should ask you is why you want to use the regulations for this. When debating this bill during second reading in the House, we criticized what appeared to be excessive use of regulations in other provisions of the bill. Why use the regulations here again?

[English]

Mr. Wayne Easter: I'll go through a bit of the reason why and then turn it to the officials.

The amendment really deletes the part of the definition (a), (b) and (c) you see in the clause at the top of page 3 that describes the types of states or organizations to which the United Nations Fishery Agreement regime would apply, and instead authorizes cabinet to create a list of states to which the UNFA regime would apply.

I know your point on regulations, but this list would appear in regulations that would be published and would be available to the public. There are several reasons for that. By having them in regulations it is more transparent once the regulations are public; it is a means of determining which state is subject to the UNFA regime; and it's also important for fisheries officers in that they would know concretely which states the list applies to.

• 0915

The approach we'd be taking by putting it in regulations is fully consistent with the provision of the Coastal Fisheries Protection Act. I don't know if Earl, Howard, or Nadia want to add a little further.

[Translation]

Ms. Nadia Bouffard (Senior Advisor, Legal Issues and Canada- France International Affairs Directorate, Department of Fisheries and Oceans): In fact, the proposed amendment will provide greater transparency and make it possible for fishery officers to determine which regime applies to ships. This will become much easier for them to determine. They will have a list, and clearly see whether the UNFA regime applies to any given ship.

Mr. Daniel Turp: What made you change your position on this? Why was this list there at the outset, and why are you now changing your position? Is there any reason other than to achieve greater transparency?

[English]

Mr. Wayne Easter: Well, certainly during the debate in the House and during previous discussion at committee, one of the points that was raised by members both on the government side and by opposition parties was, is it transparent enough? How does a fishery officer know which really applies to which state, etc.? On review, it was felt that by listing them in the regulations, it would be clear for all people involved as to the states it applies to.

Earl, do you want to add a little further?

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

In further consideration when we were reviewing the bill, it struck us that it could cause some confusion to an enforcement officer. It might be relatively easy to find out the list of states that are participating in the UN agreement, but this also covers states that have entered into a bilateral agreement with Canada.

It also covers states that may have agreed to provisionally implement the UN agreement, and therefore it would be much more difficult to find out which states these were, and an enforcement officer at sea needing to know whether a vessel is one that would be subject to this bill or not might have some confusion. It would be a lot easier for that enforcement officer to have a regulation that clearly spelled out the names of the states this legislation could apply to. The reason to do that was to make it much easier for this enforcement officer to do his job. It also provided the transparency. The names of the states that enter into new agreements or agree to provisionally implement the UN agreement or sign on to the UN agreement could be added to the list quite easily.

The Chairman: Is there any further debate?

[Translation]

Mr. Daniel Turp: I have two other questions that should help me better understand the scope of this amendment. First of all, could a state previously not governed by subsections (b) or (c) now be on the list of States covered by the regime?

Secondly, would it not have been easier just to establish a schedule listing all participating States? The schedule could have been amended by regulation in the usual way, as are the schedules of many other statutes.

I would particularly like an answer to the first question. Are there any States other than those formerly mentioned in subsections (a), (b) or (c) that could be covered by the regime, under this bill?

• 0920

[English]

Mr. Earl Wiseman: It's not only those that were (a), (b) or (c) that would be prescribed by the regulation.

[Translation]

Mr. Daniel Turp: And how do you feel about listing participating States in a schedule, as was done in a bill just debated in Parliament, another treaty implementation bill? Why would you not prefer that as a solution?

[English]

Mr. Wayne Easter: The question is, how would you change that over time, Earl, if...?

Mr. Earl Wiseman: If it wasn't a regulation, we would have to amend the act.

[Translation]

Mr. Daniel Turp: The schedule can be amended by a regulation.

[English]

Mr. Wayne Easter: No.

[Translation]

Mr. Daniel Turp: Yes.

[English]

Mr. Wayne Easter: If you had it in an appendix, if the list changed, then you would have to change the legislation, would you not?

By regulation, you can do it just by order in council as your list changes—new countries come in, or new bilaterals are signed, or whatever.

[Translation]

Mr. Daniel Turp: But in many other bills, the government has given itself the power to amend the schedule by regulation as more States become signatories to a treaty. We could achieve the same end, but the regulations would apply only to the schedule.

Ms. Nadia Bouffard: I don't understand why this would be more advantageous than the method set forth here.

Mr. Daniel Turp: It would reduce the scope of regulations. The regulations would apply only to a given list, appended to the statute. Only participating States would appear on the list. That way, you give yourself a...

With the current provision, there is a sense that you might be using the regulations to add States that are not even party to the treaty. In practice, you could do that. Subsections (a), (b) and (c) genuinely restrict you to—

[English]

Mr. Wayne Easter: I think, though, Mr. Chairman—and the witnesses can elaborate further on it—as we get to further amendments in the bill, you'll see that there are really three areas: those that are under the UNFA agreement, those that are under other treaties, and stateless vessels. So I think it's certainly felt in the discussions we've had that it would be much more efficient to do, to accommodate a list of states giving all those potential changes through order in council rather than by appendix.

Howard or Earl or Nadia, do you have anything further you can add to that?

Mr. Earl Wiseman: I don't think so, not at this point.

Mr. Daniel Turp: We'll think about it.

Mr. Wayne Easter: I have a question, Mr. Chairman, if I might.

The Chairman: Just a moment now. Mr. Turp, when you say “think”, for how long? I'm ready to put the motion. I can give you a few minutes if you want.

Mr. Daniel Turp: This will probably be on division.

The Chairman: On division?

Mr. Wayne Easter: If I can ask a question, Mr. Chair, I wonder what other legislation the appendix was applied to, as you referred to, just so we can look at it at some point in time. We can check that out anyway, if you don't have it at the top of your head.

The Chairman: Are you ready for the motion on amendment G-1?

(Amendment agreed to on division)

[Translation]

Mr. Daniel Turp: I have an answer for the parliamentary secretary. The bill I was just referring to is entitled: "An Act to Implement the Comprehensive Nuclear Test-Ban Treaty." It has a schedule that can be amended by regulation.

[English]

Mr. Wayne Easter: Okay, thanks.

Thanks, Mr. Chairman.

• 0925

The Chairman: We'll move on. It would appear that after we've carried G-1, amendment G-7, which we'll look at later, will also be affected.

Mr. Secretary, we're looking at your amendment G-2, also in clause 1.

Mr. Wayne Easter: Yes.

I would move, Mr. Chair, that Bill C-27, in clause 1, be amended by replacing line 14 on page 3 with the following:

and (vi), paragraphs 16.1(b) and 17(2)(b)

The Chairman: It was my impression, Mr. Easter, that your G-10 would be affected by—

Mr. Wayne Easter: Sorry, Mr. Chair.

The Chairman: I think we would have to look at—

Mr. Wayne Easter: You're correct, Mr. Chairman. That's my mistake. We would have to deal with G-10 first, and G-2 would be consequential to G-10.

The Chairman: So we will stand clause 1.

Mr. Wayne Easter: I'd ask that you stand clause 1 until we can deal with G-10.

The Chairman: So he's asking that we stand clause 1 as amended to date, because G-2 is consequential to G-10. With the permission of the committee then, we would like to proceed to clause 8 to consider that amendment, along with the Reform amendments R-3 and R-4.

(Clause 1 as amended allowed to stand)

(On clause 8)

The Chairman: We'll look at R-3 first. Gary.

Mr. Gary Lunn (Saanich—Gulf Islands, Ref.): I was going to move that we replace line 42 on page 6 with the following:

subparagraph 6(e)(iii), any

So in effect, we're taking out “and section 16.2, any”.

As we found through our research, in speaking with people who were in New York in 1995 when these were discussed, and following along with Premier Tobin's concerns for Newfoundland, under the current wording of this bill, you are required to get the consent of the flag state to board the vessels in certain circumstances and to lay charges. So the intent of all four of our amendments is to ensure that Canada has complete sovereignty and is not required to obtain the consent of the flag state before proceeding.

I guess, Wayne, your amendments deal primarily with the same rationale or reasoning, and I'm not sure if this is the question that deals with this, but it's whether the area is outside the 200. Is that correct? Is that where we differ?

Mr. Wayne Easter: If I could comment, Mr. Chairman, I don't think it's the area outside of the 200. The area that we differ in, in terms of what our amendments would do, would be where a vessel is spotted within Canada's 200-mile limit but pursuit can't be undertaken and you spot the vessel several days later outside. That's the area where we differ.

If I might, Mr. Chairman, I'll ask Mr. Wiseman to respond as well.

I recognize the intent of the Reform amendment. One of the difficulties we have with it on the government side is that this legislation, Bill C-27, is really to implement the United Nations Fisheries Agreement, and I believe the amendment would in effect go further than the agreement we signed allows. I think I'm correct in saying that. Therefore, I think it would put us in some difficulty. There's a question of whether it would even be allowed or enforceable under international law, but I'll ask Mr. Wiseman or Ms. Bouffard to respond.

• 0930

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

First, if I could make one comment, Mr. Lunn, you referred to Mr. Tobin's concerns. We've consulted with the Government of Newfoundland. They are aware of and support the amendments. They're satisfied that any concerns the Government of Newfoundland had are met by the packet of amendments that are being put forward.

The purpose of Bill C-27 was to give the protection officers the authority to act consistent with the UN agreement. That is its sole purpose. We can't amend the UN agreement. If we authorize an officer to take action and that officer takes action that is inconsistent with the UN agreement, we are subject to a dispute settlement by the other party. If we've acted inconsistent with the UN agreement, we will most likely lose. So to authorize an officer to do something that he has no right to do under the UN agreement would be counterproductive in that one of our objectives here is to promote the ratification of the UN agreement, to have other parties ratify the UN agreement, and to move the international fisheries management regime one step further towards a greater compliance on the high seas with international rules.

The Chairman: Is there further debate?

Mr. Gary Lunn: I have a difficulty. I appreciate that's what we're all trying to do here. It's my understanding that in fact our amendments comply with the UNFA agreement. I'll put this out because we brought this legislation before Parliament last spring, I think it was, and at that time—of course we're now making substantial amendments to the enabling legislation—we were told exactly the same argument you're telling us now, that we have to have permission of the flag state before we board the vessel. We have to have permission the way the legislation is worded now, and we can't just exercise our powers. That's exactly what we were told by the officials and that's exactly what we were told by the government.

Of course, we argued, no, our concerns were that Canada has to be able to act without permission of the flag state. So now we come back not quite a year later and learn that in fact maybe we were right, maybe you don't need permission of the flag state, and you're making many of the exact changes that we had exactly asked for. Of course, the UNFA agreement hasn't changed.

So I throw that out to you. I think we all have in mind looking after Canada's interests here. That's where I question who was the authority to determine what's in the UNFA agreement. I have spoken with people who have also participated in this UNFA agreement and they say that in fact the whole intention when it was in New York in 1995 when it was negotiated was so that Canada didn't have to get the consent of these flag states. Who do we believe, and where do we get the final word here?

Mr. Howard Strauss (Director, Oceans, Environmental and Economic Law Division, Department of Foreign Affairs and International Trade): Perhaps I might address at least some of that.

The clause in the UNFA agreement that this provision seeks to address is article 20.6. This clause was put in really at the request of developing countries, and it is outside the thrust of the whole UNFA agreement, which was designed to regulate fishing activity in areas adjacent to countries' 200-mile zones. This really calls on states or vessels to do what they should be doing anyway, which is not fish inside 200-mile zones, contrary to the conservation measures that are in place. It contemplates that where that happens, the flag state give permission to the coastal state to investigate if the vessel is then found later on outside the 200-mile zone.

• 0935

This is different. It's outside the thrust of the 1995 agreement. It contemplates a particular situation. The provision reflects customary international law. Where the flag state gives permission to another state to act with respect to that vessel, the second state can do so. Without permission, absent some exceptional situations—slavery, for example—the authority is not there. If another state attempts to exercise authority, then it's going to be very difficult to defend before an international tribunal.

Mr. Earl Wiseman: Mr. Chairman, if I may, maybe I can—

The Chairman: Okay, I want to go to Mr. Turp now, unless he wants to.... You want to forgo until after Mr. Wiseman? Good.

Mr. Earl Wiseman: This might be helpful. I'm not a very good artist, but I think I can draw some circles.

If we look at the Coastal Fisheries Protection Act—that's the bill we're amending—it provided the Government of Canada with the right to take action against a foreign vessel inside Canadian waters. If we look at international law in the case of hot pursuit, the Government of Canada could enter into pursuit of a foreign vessel inside Canadian waters and, as long as it maintained pursuit, the government could arrest that vessel outside with no consent.

We have proposed section 7.01 of the UNFA bill, which talks about a foreign vessel having potentially committed an offence inside Canadian waters. It moves out of Canadian waters. We could not enter into hot pursuit because we didn't have a vessel to chase it at the time, so hot pursuit did not occur. But several days later or at another time we sight that vessel on the high seas. This is the circumstance where international law and UNFA say we have to seek consent of the master of the vessel to board it.

However, the UNFA regime, which is really separate from that, really deals with Canada boarding a vessel on the high seas and taking action against that vessel on the high seas consistent with UNFA without asking for any consent. So we don't have to ask for consent if that vessel is on the high seas and we believe it's done something inconsistent with its UNFA obligations.

Mr. Daniel Turp: What article of UNFA allows that?

Mr. Howard Strauss: Paragraph 21.1.

Mr. Earl Wiseman: We also did amend the Coastal Fisheries Protection Act at one time, which provided for Bill C-29, which in certain limited circumstances allowed us to take action outside 200 miles.

What the UNFA bill does is it amends the Coastal Fisheries Protection Act with everything that's in it, and it just adds additional powers to it. So everything that's here stays. This stays. We now have further clarification, which has always been in international law, about proposed section 7.01 and our ability to get consent to board a vessel. Because of the UNFA regime we're more likely to get consent, whereas in the past we were pretty assured we'd get a refusal to board a vessel in that circumstance. Then we have the UNFA regime that we're attempting to put in place with this bill.

• 0940

I hope that helps in terms of the consent aspect. We don't need to have consent under the Coastal Fisheries Protection Act on activities inside our zone in hot pursuit. We only have to use it in the very unique circumstance where a vessel may have been sighted in our zone, we see it outside later, and we want to board it to see what it did and whether it committed an offence in our zone. Then we have the whole new UNFA regime, which is the purpose of Bill C-27 primarily, that gives us opportunities to take actions on the high seas consistent with our UNFA obligations.

Mr. Gary Lunn: With consent.

Mr. Earl Wiseman: No consent is required to board and no consent is required to inspect. Only if we have found an infringement do we need the consent of the coastal state to take additional action.

So if we find there was an offence committed, we then notify the flag state. The flag state has three days in which to tell us how they want to deal with this vessel. They can ask us to bring the vessel into port so we can do additional investigations and gather evidence. They can say we are fulfilling our UNFA obligations, we will take responsibility for this vessel, and we will enforce the appropriate laws and rules against that vessel, or they can not respond at all. Under such circumstances we will deem that they have given us consent to bring that vessel into port. Those are the actions that are outlined under proposed subsection 16.2.

The Chairman: Are there any further comments?

Mr. Carmen Provenzano (Sault Ste. Marie, Lib.): Does the right to board a ship in international waters without consent extend to nations that have not adopted the convention?

Mr. Earl Wiseman: Under this bill it will only apply to those categories we referred to before: those that are parties to the UN agreement; those that have entered into a bilateral agreement with us; those that have agreed to provisionally apply that section of the UN agreement; and stateless vessels. It will not apply to any other ship.

[Translation]

Mr. Daniel Turp: Does this bill authorize application of these provisions, or provisions of the bill implementing them, to States other than those that are party to the agreement within the meaning of this bill? In your opinion, does this bill give Canada the right to apply section 21.1 to other States?

[English]

Mr. Earl Wiseman: No, unless they have provisionally agreed.

[Translation]

Mr. Daniel Turp: This would mean an extraterritorial application of Canadian law not authorized by a treaty.

[English]

Mr. Howard Strauss: The rules of international law are pretty firm that ships on the high seas are governed by the flag state. Exceptions to that, according to customary international law, are rare. I mentioned slavery; that's one instance. Otherwise, a state has to grant another state authority to touch one of its ships. Articles 21 and 22 are very important in that respect and they would apply only to vessels of states that have agreed.

[Translation]

Mr. Daniel Turp: I have another question. Are the high seas to which you refer the area covered by the management organization or arrangement?

Ms. Nadia Bouffard: Yes.

Mr. Daniel Turp: In the light of the bill before us today, could another section of the high seas be involved? Under this bill, could Canada—on the basis of the bill itself or by appropriate regulations—go outside that section of the high seas covered by the management organization or arrangement?

• 0945

Ms. Nadia Bouffard: The purpose of these provisions is to target the ships of States that are members of a regional organization, and the region in question would be the area regulated by the organization.

Mr. Daniel Turp: And that would be it?

Ms. Nadia Bouffard: That would be it.

Mr. Daniel Turp: And you can say that even though—perhaps we'll talk about this in a moment—there are two other provisions in this bill, subsections 6(e)(ii) and 6(f)(ii), that appear to authorize the government to extend the area of the high seas in which it could exercise its authority to detain and board vessels.

Some European States are concerned about this. They fear that this bill could be applied extraterritorially, outside those areas of the high seas covered by existing arrangements. This is because the government is giving itself the authority to adopt regulations delineating those areas in which it could apply the new powers it has under international law.

[English]

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

I think the words “extraterritorial application of Canadian law” are ones European Union parliamentarians and some member state representatives have used to criticize our legislation. The part they seem to overlook is that if you look at their own implementation regulations, they have extraterritorial applications the same as ours. UNFA is a UN agreement that gives authority to states to take action, for the first time, on the high seas against vessels of other states without consent. It's historic. That is one of the purposes of UNFA. So yes, the bill is extraterritorial because it gives us that authority.

Now your question is, does it apply beyond areas that are managed by regional management organizations or other arrangements? The answer is no. The Arctic is not covered, but the Atlantic and Pacific Oceans surrounding Canada are covered by regional fisheries management organizations or some arrangements or agreements. So all the seas that are of interest to Canada are covered. We can take action to ensure vessels are complying with international rules on fish stocks of importance to Canada. It extends if we want it to, and again it's whether we have the enforcement desire to go way out into the Atlantic Ocean to go after fishers of swordfish and tuna. But we would have that authority as well.

We probably don't have authority to go to certain isolated spots in the world where fisheries management organizations or arrangements do not exist. But it is most unlikely that an activity that could be taking place there would have an impact on stocks of importance to Canadians.

[Translation]

Mr. Daniel Turp: I will come back to subsections 6(e)(ii) and 6(f)(ii) in a moment. They might mean something else. I will be asking questions on them in a moment.

[English]

The Chairman: Mr. Lunn, do you want to make a few more comments on your amendment?

Mr. Gary Lunn: I'd like to just clarify a couple of issues with Earl.

I'm just trying to get this so we're on the same understanding. The issue of hot pursuit is dealt with in proposed section 7.01. Am I correct?

Mr. Earl Wiseman: No.

Mr. Gary Lunn: We're not there yet, but you're telling us as long as hot pursuit begins in Canadian waters, we can go outside to maintain the pursuit and we don't need permission of the flag state to board, arrest or bring the ship back to port. Is that correct?

Mr. Earl Wiseman: That's correct.

Mr. Gary Lunn: In your last example at the bottom, under UNFA, even if we come across a vessel outside Canadian waters, but at some other time we have some type of evidence or believe it was fishing inside Canadian waters, we can pursue that vessel but we need the consent of the flag state. Is that correct?

Mr. Howard Strauss: Yes.

• 0950

Mr. Earl Wiseman: It's true that it is in UNFA, but it was also a longstanding principle of international law. You couldn't take action against any vessel on the high seas without the consent of the flag state.

The UNFA clause really restates that existing understanding and rule of international law. It isn't new; it is just a restatement. The only difference is that in UNFA there's a greater obligation on the part of the flag state to say yes. Under the rule in the past, they could say no.

Ms. Nadia Bouffard: One might ask why we have put this provision in the bill if it's a longstanding rule of international law.

The answer is that our fisheries officers need to have specific authority from Parliament in order to exercise enforcement powers. Attached to that are the protections the Criminal Code offers to these enforcement officers, and without that specific authority to act outside Canada, they don't have this protection. So that is what this provision offers.

Mr. Gary Lunn: You need permission before you even board. Is that correct?

Mr. Earl Wiseman: In fact, today, if a state gave us permission to board, our protection officers wouldn't have the authority to board under the law. So we're giving them the authority to just be able to do what international rules have been for a long time in this particular case.

Mr. Gary Lunn: I have one more quick point. What happened under the Estai? That was a hot pursuit, correct?

Mr. Earl Wiseman: That was a pursuit that started on the high seas and continued on the high seas. There's a difference. A hot pursuit—

Mr. Gary Lunn: A hot pursuit starts in Canada; I appreciate that. So this was both outside....

Mr. Earl Wiseman: But the Estai was covered by the amendments to the Coastal Fisheries Protection Act in Bill C-29. That is and continues to be a current part of the existing Coastal Fisheries Protection Act, dealing with specific problems in the NAFO regulatory area relating to straddling stocks.

Mr. Gary Lunn: So what you're telling me is that under Bill C-29, with the Estai, it wasn't hot pursuit, and in fact it was just an enforcement outside our waters without the consent of the flag state.

Mr. Earl Wiseman: That's correct.

Mr. Gary Lunn: We unilaterally acted on our own, brought that vessel back to our port, charged it, and went on through the whole process. This, then, would contravene that. You're telling us they're all going to remain in force, that this doesn't take away from Bill C-29 but in fact is not doing the same thing. Is that correct?

Mr. Howard Strauss: Bill C-29 was passed to deal with an exceptional situation and was effective in doing so, and it stays on the books. The purpose of this bill is to implement the 1995 agreement, and the two would be on the books in parallel.

The Chairman: Mr. Turp.

[Translation]

Mr. Daniel Turp: Is that in compliance with international law?

[English]

Mr. Howard Strauss: Of course.

[Translation]

Mr. Daniel Turp: But we will not have an opportunity to confirm that through a decision by the World Court, for example.

Is Bill C-29 covered by the UNFA? Do you believe that exceptional circumstances justifying action like that taken against the Estai will henceforth be authorized under the UNFA?

[English]

Mr. Howard Strauss: Bill C-27 only applies to given states. If a flag of convenience, for example, a flag state, was not party to the 1995 agreement, then Bill C-27 would not apply to that state; Bill C-29 would be the only legislation we had that would apply.

[Translation]

Mr. Daniel Turp: I understand, but I was asking which provisions of Bill C-29 are now in greater compliance with international law, assuming that we did not think they were in compliance at the time.

[English]

Mr. Earl Wiseman: They are two different scenarios, but the reality is that much of what is in Bill C-27 and what is in the UN agreement provides us with authorities that did not exist before to actually take action to enforce, to inspect, to ensure that internationally established conservation and management measures on straddling stocks and highly migratory fish stocks can be enforced. That is what Canada wanted. That is partially what Bill C-29 was for. In exceptional circumstances we gave ourselves the unilateral authority to do that. The UN agreement provides us much broader scope for those kinds of activities, to ensure international rules are being followed on the high seas.

• 0955

[Translation]

Mr. Daniel Turp: I don't think you have really answered my question. Your smile says a lot about that.

Are the unilateral powers added to the Coastal Fisheries Protection Act by C-29 covered by the UNFA?

[English]

Mr. Earl Wiseman: I'm not a lawyer, so I find it hard to get into the specifics, but they're really separate issues. I find it hard to say one is covered and....

[Translation]

Mr. Daniel Turp: Yes, I would agree with that.

[English]

Mr. Earl Wiseman: What I was trying to say is that the intent of Bill C-29, much of what we wanted to accomplish in terms of being able to ensure vessels complied with international rules on the high seas, will be complied with, and that's the purpose of the UN agreement—to provide us with a greater assurance that there will be compliance on the high seas.

[Translation]

Mr. Daniel Turp: You are not any closer to answering my question. Obviously, you don't really want to answer it.

[English]

Mr. Earl Wiseman: I don't know if one of my colleagues can comment any further on that.

[Translation]

Mr. Daniel Turp: We have to be frank here. The purpose of Bill C-27 is to implement a treaty that clearly gives Canada extra- territorial powers it did not have before that treaty. It did not have them, unless international law is interpreted very broadly indeed. But here is what I would like to know: have the exceptional powers given to Canada under Bill C-29 been incorporated into this bill, into this new treaty? If they have not, we still have the problem of compliance with international law.

Even if we do not look at Bill C-29 and other provisions of the Coastal Fisheries Protection Act, there is a link here. Foreign States make that link, because they claim that the Coastal Fisheries Protection Act will still contain provisions that are extraterritorial in scope and in violation of international law.

[English]

Mr. Howard Strauss: There are some states that are criticizing Bill C-27 because it does not repeal what was put in place by Bill C-29. They consider what was put in place by Bill C-29 to be contrary to international law, and the decision was taken not to repeal what is in Bill C-29.

Mr. Daniel Turp: What article of the Fisheries Act precisely should have been repealed, according to the Europeans?

Mr. Howard Strauss: I haven't been in such specific discussions with them.

Mr. Earl Wiseman: All of Bill C-29 is what they say.

Mr. Howard Strauss: What Bill C-27 does is by example and consensus to provide some additional arrows in the quiver. For example, if one disagreed with the autonomous fishery measures put in place by a flag state, one could go to arbitration just on that. That's an additional tool one would have.

There then is the power to board vessels and inspect, and this is now given by this agreement. It allows Canada as a state to do it, not through NAFO inspectors doing it. It then allows us, if we're not satisfied with the response by the flag state, to bring the vessel into port. This is additional as well.

That is probably the second major bone of contention between ourselves and some other states. Under our reading of the agreement, we have the right, if we're not happy or if there's no response from the flag state, to proceed to further investigation. It's the view of some states that that's not allowed by the agreement. Two lawyers, two views. If it comes down to court, well, so be it, but those are the kinds of things we are allowed to do under the agreement. It covers some of the same territory and it deals with some of the same phenomena. I hope that comes closer to answering your question.

• 1000

The Chairman: Thank you. We've given a lot of latitude on this, because it does affect other parts of the bill.

Are we ready for the question?

Mr. Wayne Easter: I would like to make a couple of points, Mr. Chair.

The Chairman: You're not ready for the question on R-3.

Mr. Wayne Easter: No. I just want to add to what Howard has said with regard to the questions from the Bloc. Certainly, we want to ensure that we're protecting Canada's interests, its fishing communities and its fisheries, and utilizing every available pursuit we can under UNFA and domestic legislation. I think what we're trying to do with this legislation is to reinforce what's already there and to give our authorities and our enforcement officers the protection they need at such time as they do board vessels in international waters. We want to ensure that Canada's interests are protected. That's part of the purpose here.

The other point I wanted to make, Mr. Chair, is that I oppose the Reform amendment because I think it is covered under other amendments the government has proposed. The intent is sound, but I think it's covered under other government amendments in a way that is in accordance with the United Nations Fisheries Agreement, which is the whole purpose of this legislation. Therefore, I have to oppose that particular amendment.

But to the credit of the Reform Party and all members of the committee, based on previous discussions, the new amendments take into consideration concerns members expressed and ensure that we have the authority under the agreement.

The Chairman: Gary.

Mr. Gary Lunn: This will be my last comment. I just want to rationalize this. Bill C-29, which is our domestic legislation, gives our enforcement people the ability to board and arrest any vessel inside or outside that we believe has contravened fishing laws. Is that correct?

Mr. Earl Wiseman: No, not any vessel, only vessels from states that are prescribed—

Mr. Gary Lunn: In C-29.

Mr. Earl Wiseman: —in C-29, and it only applies to outside. Inside was covered by the Coastal Fisheries Protection Act as it stood. C-29 only applies to the NAFO regulatory area. It wouldn't apply in the Pacific or anywhere else.

Mr. Gary Lunn: I get you. So C-27 is only expanding that, then. Although it may not seem to be as strong a provision, it's going to apply to other areas and to other states.

Ms. Nadia Bouffard: It will apply to other species, highly migratory species.

Mr. Gary Lunn: Where they're covered under C-29, you would argue that C-29 would take precedence over C-27. C-29 seems to be a lot tougher or to give us a lot more teeth than C-27 does.

Mr. Earl Wiseman: Perhaps you can regard it as you have emergency powers, emergency legislation, in cases of serious threat requiring immediate action, and that's the C-29 provisions. Those stay. That's our emergency. You have the C-27 provisions, which are giving us powers that go further than they ever have before on a much wider geographic scale and on a much broader species scale, and that will potentially cover vessels from many more countries.

Mr. Gary Lunn: Thank you.

(Amendment negatived on division)

• 1005

The Chairman: Gary, it's my understanding that R-4 is also negated as a result of R-3. R-1 and R-2 were also consequential.

Mr. Gary Lunn: It's all the same issue. That's what I was trying to—

The Chairman: Now we'll move on, Mr. Easter, to your amendment G-10.

Mr. Wayne Easter: Just so people are clear, there is a new G-10 on a single sheet that was handed out.

The Chairman: What was the reason for that, Mr. Easter?

Mr. Wayne Easter: It involved just a slight change and a change in the French translation. It's not in the package. It's on a single sheet that was handed out.

I would like to move it, Mr. Chairman, and then get into an explanation. I move that Bill C-27 in clause 8 be amended by replacing lines 41 to 47 on page 6 and lines 1 to 21 on page 7 with the following, and it's there in front of you. I'm not going to read it. My voice wouldn't last that long today.

The underlined part in proposed section 16.1 is “Despite the geographic limitations referred to in section 7”, and then the letter (a), and on the second page of that sheet, proposed subsection 162.2(2), adding “If the”. I'll read that whole line. It says:

(2) If the protection officer believes on reasonable grounds that the vessel has contravened section 5.3, the officer

—which is an addition—

shall without delay inform the participating state.

And then as well, under “Deemed consent”:

(3) In addition to the powers referred to in subsection (1), a protection officer may, with the consent of the participating state, exercise any powers referred to in section 16.1.

And it goes on from there to proposed paragraphs 162.2(3)(a) and (b).

So you have it before you. I presume it's written into the record.

Just as explanation, Mr. Chair, the purpose of the proposed amendments is to clear up possible misunderstandings concerning the operation of these provisions and the extent to which enforcement powers can be exercised with regard to the following types of vessels, and I think this is very important: fishing vessels subject to the UNFA regime, the United Nations Fisheries Agreement regime; fisheries vessels that are subject to other fisheries treaties; and stateless vessels.

The amendments clarify, Mr. Chairman, that all enforcement powers currently found in the Coastal Fisheries Protection Act can be exercised by Canadian enforcement officers in relation to stateless vessels as well as UNFA vessels and vessels of states party to other treaties or arrangements. I want to emphasize that point, because that was one of the major concerns raised by, I think, members of all parties in the earlier discussions we had, and it was one of the concerns raised by Premier Tobin from the province of Newfoundland.

The exercise on the high seas of enforcement powers related to UNFA vessels is still subject to requirements specified in the United Nations Fisheries Agreement, and they're outlined in proposed section 16.2 and in regulations made pursuant to subparagraph 6(e)(iii).

The amendments, Mr. Chairman, clarify the text of Bill C-27 so as to ensure that Canadian enforcement officers—and I believe Earl made this point earlier—can board and inspect UNFA vessels in areas of the sea managed by a regional fisheries organization, in other words, NAFO. If a violation is discovered, Canadian enforcement officers can search the vessel and seize evidence without the prior consent of the flag state. After notifying the flag state, as required by the agreement, enforcement officers must wait for a response from the flag state before exercising additional enforcement powers, but I do understand they can collect evidence while they're waiting for that. A period of up to three days will be provided in the regulations. This is consistent with the United Nations Fisheries Agreement.

• 1010

Additional enforcement power—I'm taking some time here, Mr. Chairman, because this is the key amendment we've made to the legislation—such as bringing the vessel to port and further investigating the violation at port can be exercised where, one, the flag state responds by consenting to Canadian enforcement authorities taking additional enforcement action against the vessel; two, the flag state does not respond at all to the notification within the three-day period, so Canada deems that we have consent; and three, the flag state responds—and I think this is very important—but does not take appropriate measures to fully investigate the violation. Again, that can be a deemed consent situation. If the flag state responds to the notification with appropriate measures to fully investigate the matter, then the Canadian enforcement officers would turn the vessel over to the flag state for further action by that state.

This is the last point, Mr. Chairman. The exercise of enforcement powers and implementing other fisheries treaties is also subject to requirements provided by the treaty, which will be outlined in regulations, this time made pursuant to subparagraph 6(f)(iii).

As a result of the clarified new text in the amendment of proposed sections 16.1, 16.2 and 16.3, section 16.3 will no longer be necessary because its content has been incorporated into section 16.1. I hope you understand that long explanation.

The Chairman: More discussion?

Mr. Yvan Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok, BQ): Could you repeat that?

Mr. Wayne Easter: In exactly the same words, Yvan.

[Translation]

The Chairman: Mr. Turp.

Mr. Daniel Turp: I don't quite understand the first sentence of the proposed new section 16.1:

[English]

“Despite the geographic limitations referred to in section 7”.

[Translation]

Just what does that mean?

Mr. Earl Wiseman: It's because Ms. Bouffard—

Mr. Daniel Turp: In French, the text says: "Malgré les limites géographiques prévues à l'article 7."

Ms. Nadia Bouffard: Perhaps we should since we are amending the Coastal Fisheries Protection Act rather than writing a new act, we try to extend the existing powers to the scenario set out in the agreement on overlapping stocks. There are powers set out in section 7 and following that must be extended to the maritime zones covered in the agreement, namely those regulated by regional agencies—

Mr. Daniel Turp: —that are parts of the high seas.

Ms. Nadia Bouffard: Yes. And section 7, presently, is limited geographically. In order to extend those powers to the parts of the high seas covered by the UN Convention, we would have had to make an exception to the limit already set out in section 7.

Mr. Yvan Bernier: In section 7 of the Convention?

Ms. Nadia Bouffard: Of the Coastal Fisheries Protection Act.

Mr. Daniel Turp: So section 7 of the Coastal Fisheries Protection Act extends them to Canadian fishing waters and to the NATO or NAFO regulatory zone—is that right, Ms. Bouffard?

Ms. Nadia Bouffard: Yes.

Mr. Daniel Turp: So if I understand correctly, section 7 of the present act, which has not been amended, creates the geographical limit for Canadian fishing waters and the NAFO regulatory zone. Does article 16.1 extend these zones?

Ms. Nadia Bouffard: It extends the exercising of powers to these zones. In order to extend these powers, when they are already geographically limited to the NAFO region, an exception had to be made.

• 1015

Mr. Daniel Turp: But what other zones are included in section 16.1?

Ms. Nadia Bouffard: Those regulated by the regional fisheries organizations, which regulate high seas fisheries and stocks—

Mr. Daniel Turp: Other than NAFO.

Ms. Nadia Bouffard: Including NAFO, but also those that regulate highly migratory stocks, such as the CICTA, which regulates tuna.

Mr. Daniel Turp: Might there be other geographical limits? Can it cover zones other than those regulated by regional organizations?

Ms. Nadia Bouffard: I do not think so. I believe that the terms under which regulatory power is set out limit the Governor in Council's authority to describe the regions in question as being those regulated by the regional organizations.

Mr. Daniel Turp: We'll get back to that when we talk about the two paragraphs that concern me.

Ms. Nadia Bouffard: It's all interconnected.

Mr. Daniel Turp: Would it not have been easier to amend section 7, or was it impossible to do so? It wasn't necessary to—

Ms. Nadia Bouffard: It's because if we had to amend section—

Mr. Daniel Turp: Section 7 talks about something else; is that it?

Ms. Nadia Bouffard: We thought about this possibility, but we would have had to change not only section 7, but all the other enforcement powers. So it would have been more than section 7.

Mr. Daniel Turp: Okay.

Ms. Nadia Bouffard: It was the easiest way to achieve the objective.

Mr. Daniel Turp: Do the House debates still account for why you wanted to change the first line in section 16.1?

Ms. Nadia Bouffard: No, it's a strictly legal matter.

Mr. Daniel Turp: A legal matter?

Ms. Nadia Bouffard: Strictly legal.

Mr. Daniel Turp: You did not see it that way when the first draft was made.

Ms. Nadia Bouffard: No, not at all.

Mr. Daniel Turp: Okay. I have another question and it applies to other clauses. In clause 16.2, why do you say "motifs raisonnables" or in English, reasonable grounds, when the convention uses "raisons sérieuses", which in English should be clear grounds?

Ms. Nadia Bouffard: Yes.

Mr. Daniel Turp: Why do you use a terminology different from the terms used in the Agreement?

Ms. Nadia Bouffard: That's a good question. It was raised by the European Community, which challenged the use of terminology different from what was in the agreement. The answer is relatively simple. Under Canadian law, including the Charter of Rights and Freedoms and the Supreme Court's interpretation of it, a standard or test is prescribed before certain implementing powers can be used. The test is this: there must be reasonable grounds before the powers are exercised. We analyzed this standard in light of what was in the Agreement, and we reached the conclusion that it was equivalent, even if the words are different. The standard as such is equivalent. We felt it was preferable to use a test, a type of terminology determined a number of times by the courts, rather than using something new that might have been interpreted differently.

Mr. Daniel Turp: That doesn't necessarily follow; there is quite a difference between "clear grounds" and "reasonable grounds". Perhaps the bill should have contained an interpretive provision indicating that the bill must be interpreted in accordance with the provisions of the Agreement in order to avoid incompatibility between the terms. If you believe they are compatible, it would be useful to have an interpretive clause referring to the Agreement.

• 1020

Ms. Nadia Bouffard: I think that is implied in the words, "implementing of the Agreement," in 6(e). That's the capstone, the regulatory provision.

Mr. Daniel Turp: In what section?

Ms. Nadia Bouffard: Subsection 6(e), page 4 of the bill. It necessarily means that the Agreement is being implemented. All the regulatory powers arising from it must be exercised in light of this Agreement and in conformity to it.

Mr. Daniel Turp: In my opinion, that's not enough. Canada's courts have never felt it sufficient to have a reference to the idea that a treaty in law implements in an agreement in order to interpret it as necessarily in accordance with the agreement.

An interpretive clause would be very useful in this case.

[English]

Mr. Earl Wiseman: Mr. Chairman, I think Canadian jurisprudence, Canadian interpretation, is what has to govern because we're appearing before Canadian courts, rather than the words in the international accord; in our view there is equivalence. If there is a problem on the part of a flag state in terms of our interpretation versus their interpretation, they can choose to go to a dispute settlement to have it resolved.

[Translation]

Mr. Daniel Turp: Yes, but in order for the Canadian courts to interpret the concept of "reasonable grounds" in accordance with the treaty, which uses the expression, "raisons sérieuses", an interpretive clause could be very useful. It would give the judge a clear indication that in interpreting the act, he must take into account the treaty it implements.

An amendment might be proposed here.

[English]

The Chairman: Peter, you had a point too?

Mr. Peter Stoffer (Sackville—Eastern Shore, NDP): I have several points.

The Chairman: On this, now?

Mr. Peter Stoffer: Yes. I can elaborate a bit, if you don't mind. I apologize for being late this morning, but the flight was a little delayed.

You've questioned that it could go to a dispute settlement. I'm thinking, for clarification's sake, about Bill C-55, which the government is trying to get through, and the United States is threatening trade sanctions in other areas without going to dispute settlements. What would make you think a country would want to approach a dispute settlement in terms of the courts when they could just lay a trade sanction against us, if they so desire?

Mr. Earl Wiseman: I'm not sure I can answer it in the broad scope that you've asked the question. Relating to this bill, though, the parties to the UN agreement are agreeing to compulsory, binding dispute settlement. If they have a dispute they can't work out between them, they must go to some binding settlement process. They can't refuse to go to a binding dispute settlement process. So you have that avenue in this agreement, which doesn't exist in many other agreements.

Mr. Peter Stoffer: Okay. My next question is on the paper we have on proposed section 7.01. I won't read the whole thing out, but what would happen if you took out, in the sixth sentence, “with the consent of that state”? If you just took that out of that clause.... What would happen if that was left in the act?

Mr. Earl Wiseman: We had that discussion—

Mr. Peter Stoffer: Yes, I know. I just wanted to be on the record as asking that question.

Mr. Earl Wiseman: If we removed the word “consent” and we put it in our legislation, nothing would happen. However, if a fisheries officer boarded a vessel without seeking consent, we would not be acting consistently with our international obligation as a party to the treaty. The flag state could then take us to dispute settlement and would probably win in that we did not have authority to board their vessel on the high seas. So our action would be inconsistent with UNFA.

It would also affect our credibility as being serious about wanting to have internationally accepted rules adopted and put in place and implemented by other states. If we lose our credibility by not following these steps in this newly ratified agreement, others may not want to seriously consider ratifying it. We need to all follow the rules as they're laid out in this new agreement. We have to try to encourage others to implement them and fulfil their obligations as well.

• 1025

The Chairman: Are you ready for the question?

[Translation]

Mr. Daniel Turp: I have one small question, Mr. Chairman. In the new marginal note for section 16.1, as amended by document G- 10, it now says in French: "Pouvoirs du garde-pêche—bateau de pêche d'un État assujetti à l'accord ou un traité ou entente." You added: "ou un traité ou entente." Why? The expression, "assujetti à l'accord," if I understood correctly, has to do with the States designated by regulations, but you have added, "ou un traité ou entente."

Ms. Nadia Bouffard: It was said a number of times at the beginning that the main object of the Act was to implement the UNFA treaty. There are a few other parallel provisions, but they are not covered by the UNFA. One of them is providing power implementing other treaties not covered by the UNFA, treaties that are agreements. We gave a few examples during previous sessions. These include MOUs with the Baltic States, for example. They are agreements whose impact is quite limited, which authorize us to inspect their boats in a certain maritime area. These kinds of agreements are referred to in the regulatory provisions of 6(f). So we propose implementing these agreements by regulatory rather than legislative means.

Mr. Daniel Turp: It's in 6(f)?

Ms. Nadia Bouffard: Yes. Those are the agreements referred to here, when it says, "the Agreement, or a treaty or agreement." These are the key words for the treaties referred to in 6(f).

Mr. Daniel Turp: You forgot about them in the first version of the marginal note for 16.1?

Ms. Nadia Bouffard: Precisely. The objective is to extend the implementing powers to three categories of vessels: those of the UNFA, UNFA vessels, the boats of member States under these other treaties that will be implemented by paragraph 6(f), and stateless vessels.

Mr. Daniel Turp: Can you say whether this act indirectly implements the UN Law of the Sea Convention of 1982?

Ms. Nadia Bouffard: No.

Mr. Daniel Turp: The UNFA is a supplementary agreement, is it not? What connection is there between the UNFA, the UN Law of the Sea Convention and the dispute settlement question, for example?

[English]

The Chairman: Howard.

Mr. Howard Strauss: The 1995 agreement addresses a particular issue and builds on the 1982 Law of the Sea Convention. It utilizes, for example, the dispute settlement provisions of part 15 of the Law of the Sea Convention.

The Law of the Sea Convention itself is a multi-sectoral convention. It was developed to address a broad range of concerns and has provisions on deep-seabed mining and boundary settlement, which are not touched on here. So I think it builds on the Law of the Sea Convention and draws on some of the institutions established by the Law of the Sea Convention, but I don't see that it can be regarded as bringing in the Law of the Sea Convention by the back door. The Law of the Sea Convention touches on many other things.

• 1030

Thank you.

(Amendment agreed to on division [See Minutes of Proceedings])

The Chairman: We stood clause 1. Do you have another amendment there, Mr. Parliamentary Secretary?

Mr. Wayne Easter: We can now get back to clause 1.

The Chairman: Wayne, before I do that, is clause 8 carried?

Mr. Wayne Easter: As amended? We didn't vote on that.

(Clause 8 as amended agreed to on division)

Mr. Daniel Turp: G-8?

The Chairman: We dealt with clause 8.

Mr. Wayne Easter: We dealt with clause 8 when we were dealing with Reform—

The Chairman: G-10 was on clause 8. It has just been approved on division, as amended.

Mr. Daniel Turp: Right.

The Chairman: Now we go to government amendment 2, going back to clause 1. This is consequential to G-10.

(On clause 1)

Mr. Wayne Easter: That's consequential to G-10, so, Mr. Chair, I'd say we carry it.

The Chairman: It simply refers back to paragraph 16.1(b) and 17(2)(b), section 6.

Mr. Wayne Easter: I had better read it into the record I guess, Mr. Chair.

It is moved that Bill C-27 in clause 1 be amended by replacing line 14 on page 3 with

and (vi), paragraphs 16.1(b) and 17(2)(b)

The purpose of the amendment is to state the obvious in reference to the amendment we just passed in G-10. So it's consequential.

The Chairman: It's consequential, as we just approved the....

(Amendment agreed to on division)

The Chairman: That completes clause 1. Mr. Secretary, will you make a motion then that clause 1 be approved as amended?

Mr. Wayne Easter: Yes, Mr. Chair.

(Clause 1 as amended agreed to on division)

The Chairman: We will look next, Mr. Parliamentary Secretary, at your amendment G-3. Would you like to move those together? I believe they are all of the same type.

Mr. Wayne Easter: If it can be done that way, Mr. Chair.

Mr. Daniel Turp: Which one?

Mr. Wayne Easter: There are several consequential amendments on this one. If we pass G-3, amendments G-4, G-5, G-6, and G-8 are consequential. It's just adding the words “or regulation”. I'll move it and then get into an explanation.

I move that Bill C-27 in clause 2 be amended by replacing line 23 on page 3 with:

(a) contravene a measure or regulation designated under”

and replacing line 27 on page 3 with:

contravention of a measure or regulation designated under

As the chairman asked, there's a number of consequential amendments as a result, if we carry G-3. As presently worded, subparagraph 6(e)(i) of the bill's regulation-making power permits the government and governor in council to make regulations incorporating fishing measures established by regional fishery organizations such as NAFO These incorporated measures, when designated under subparagraph 6(e)(i), will constitute rules the convention of which will be prohibited under section 5.3. Many of the NAFO measures bind states rather than vessels. To be valid offences under Canadian law, these rules must be worded specifically to address vessels. Strict incorporation by reference of the NAFO measures in the regulations would not be sufficient to bind vessels. Adjustments to the wording of the measures must therefore be made.

• 1035

The proposed amendments address this problem by allowing the governor in council to make regulations that would give effect to the fishery organization's measures. Four amendments to the bill are required to effect this change, Mr. Chairman. The main amendment is, as I outlined, to subparagraph 6(e)(i) by adding the words “or carrying out and giving effect to”. Consequential changes reflecting the new terminology are required to subparagraph 6(e)(ii) and proposed paragraphs 5.3(a) and 5.5(a).

I might mention as well, Mr. Chairman, that similar changes are proposed to regulation-making power found in paragraph 6(f), which deals with the power to make regulations concerning the implementation of “other international fisheries treaty or arrangement”. These changes will make the language of both paragraphs 6(e) and 6(f) consistent, as they deal with similar implementation of internationally agreed measures.

I so move, Mr. Chairman.

The Chairman: Do we need more discussion? Yvan.

[Translation]

Mr. Yvan Bernier: We are looking at amendments G-3 and G-4.

Mr. Daniel Turp: I think we are actually looking at amendments G-5 and G-6.

Ms. Nadia Bouffard: Amendment G-6 is the main one, while amendments G-3, G-4 and G-5 are consequential amendments arising from the main one. In order to provide regulatory provisions that mirror similar circumstances, amendment G-8 is designed to change proposed paragraph 6(f), which will also affect the provisions of amendment G-4.

Mr. Daniel Turp: Can we get back to section 6 during our discussions?

[English]

Mr. Wayne Easter: Paragraph 6(f)?

[Translation]

Mr. Daniel Turp: Yes, as paragraph 6(e) proposes?

[English]

Mr. Wayne Easter: Yes, paragraph 6(f) was the main—

Ms. Nadia Bouffard: Paragraphs 6(e) and 6(f) are the main....

Mr. Wayne Easter: Yes.

[Translation]

Mr. Daniel Turp: But if the amendments proposed by G-6 are passed, will that not prevent us from getting back to section 6, including paragraphs 6(e) and 6(f), which we would like to comment on?

[English]

Mr. Wayne Easter: Only if we carried them as amended. So if we carry the amendment, you can still debate the motion as amended, can you not, Mr. Chair?

The Chairman: Probably. We would stand that portion of it if the Bloc has an amendment to bring in or if there's discussion on it.

[Translation]

Mr. Daniel Turp: Yes. One of the main things we wish to do today is to fully understand the scope of subparagraphs 6(e)(ii) and 6(f)(ii). I would like to have an opportunity to talk about them. I certainly do not wish to pass amendments that will prevent us from discussing them later.

[English]

The Chairman: It was suggested we stand these amendments and look at G-6 next.

Mr. Wayne Easter: Okay.

The Chairman: Would that be satisfactory to the committee?

Some hon. members: Agreed.

• 1040

(On clause 3)

The Chairman: Looking at amendment G-6, then....

Mr. Wayne Easter: I move that Bill C—

[Translation]

Mr. Yvan Bernier: Wayne, when you read the text of the amendment, can you read it more slowly in order to help the interpreter, who does not have your notes?

I would also like to ask the clerk a question. Did Wayne just cause us to pass amendments G-3, G-4 and G-5 with dissent, or did we decide to defer them until we look at subparagraphs 6(e)(ii) and 6(f)(ii)? Everything is happening so fast this morning. It's a mish-mash.

[English]

The Chairman: I thought we were going too slowly. We stood amendment G-3 until we looked at amendment G-6.

Mr. Wayne Easter: Amendment G-3 is really consequential, and amendment G-6—

The Chairman: When we decide on G-6, we'll go back to G-3, and pick the others up in consequence.

Mr. Wayne Easter: I move that clause 3 of Bill C-27 be amended by (a) replacing line 24 on page 4 with the following:

(i) incorporating by reference, or carrying out and giving effect to, any con-

(b) replacing line 33 on page 4 with the following:

the measures incorporated by reference or regulations made under this subparagraph those the contravention of

(c) replacing line 43 on page 4 with the following:

incorporated by reference and the regulations made under subpara-

I so move Mr. Chairman. Basically, the explanation that I gave previously stands for this amendment.

[Translation]

Mr. Daniel Turp: I have a terminological question. I find it curious that in the amendment to new subparagraph 6(e)(i), you translate the expression, "ou mettre en oeuvre" by "or carrying out and giving effect to." It would be much easier to say "or implementing". I do not know why you wish to use such a long expression in English, where the French says "ou mettre en oeuvre", when it means the same thing.

Ms. Nadia Bouffard: The new techniques for legislative writing in French are more concise.

Mr. Daniel Turp: Yes, but in English, the expression "or implementing" means the same thing. What difference is there between it and "carrying out and giving effect"?

Ms. Nadia Bouffard: We might go back and look at the purpose of this change again.

Mr. Daniel Turp: Yes.

Ms. Nadia Bouffard: It is an important change required for strictly legal reasons. The purpose of subparagraph 6(e)(i) is to bind, in Canadian domestic law, the vessels of UN Convention member States by the provisions or fisheries measures adopted by the regional organizations. I could quote the example of NAFO's countries that every year adopt new conservation and implementing measures. Many of the measures they adopt have to do with countries and not vessels.

In Canadian law, for an offence to be valid under the Canadian Charter of Rights and Freedoms, there can be no ambiguity. Everything must be clear and the prohibited behaviour as well as the consequences must be stipulated. Someone reading the text of this measure could conclude that in the end, the behaviour refers to the boats and not the countries, which is insufficient in Canadian law.

• 1045

Simply incorporating this book in our regulations was not enough. Power had to be conferred upon the Governor in Council to adapt these measures to make it clear that the reference was to the boats. I can give you some examples, but unfortunately, they have not been translated. It says, in reference to a member State of NAFO:

[English]

A Contracting Party shall ensure that each vessel of that Party with fish on board shall, on entering the Regulatory Area, have a record in its fishing logbook of the amount of each species of fish on board.

[Translation]

The log book, as Mr. Bernier pointed out, must indicate how many fish have been caught. Mr. Bernier, you are even more of a terminology expert.

Mr. Yvan Bernier: A log book, it is a log book.

Ms. Nadia Bouffard: Okay. This requirement is nevertheless quite important, and it enables the fishery officers to determine how many tons of fish have been caught and where they were caught. That requirement, in accordance with these measures, covers the NAFO member States. In Canadian law, we need to equip ourselves with regulatory power, not only to incorporate that provision, but also to amend it so that it covers the boats and the captain of the boat, and not only the NAFO member country.

Mr. Daniel Turp: Does that explain the use of the words "or carrying out and giving effect?" I have a fairly good grasp of why the regulatory power is used this way, but in French, the expression "ou mettre en oeuvre" is used, and it is just a simpler way of saying "implementing" and "carrying out and giving effect to." At any rate, you chose the terminology, but it is much more complicated. So is it sufficient to say "ou mettre en oeuvre" in French?

Ms. Nadia Bouffard: As my colleague has just reminded me, the anglophone drafters found that the words "carrying out and giving effect to," gave the Governor in Council more flexibility to allow him to do what I just explained.

Mr. Daniel Turp: Do the words "mettre en oeuvre" give us as many possibilities?

Ms. Nadia Bouffard: The francophone drafter believes they do.

Mr. Daniel Turp: That is the essence of language!

One last question on that. Is regulatory power for that purpose really necessary? It is a bit worrisome to implement an international agreement through regulatory power, which, as you are very much aware, means that the matter is not within Parliament's purview. As MPs and parliamentarians, we will not really have an opportunity to debate the measures implementing an international treaty. I do, however, believe that it is important for elected representatives to have an opportunity to examine the measures that implement international treaties. Using the regulatory power will prevent us from doing so. I would like to know why that approach was chosen. Is it because it is technical? Is that the only reason or are there others?

Ms. Nadia Bouffard: It is more than technical; it is a practical matter. Those measures are amended every year. If the measures were included in the legislation rather than in the regulations, the Act would have to be amended each year to reflect these measures.

[English]

Mr. Earl Wiseman: That's just NAFO. There is ICCAT, and there are other conventions as well.

[Translation]

Mr. Daniel Turp: Does the Department of Fisheries and Oceans plan to consult parliamentarians on these matters or are you already doing so?

• 1050

[English]

Mr. Earl Wiseman: Just to understand your point, because I think maybe I'm interpreting it incorrectly, there are two ways to interpret. Are you referring to consultation on the measures or consultation on the use of regulations?

Mr. Daniel Turp: I'm referring to consultation on the use of regulations.

Mr. Earl Wiseman: I think that's a broader question than I can deal with here. Ministers, I think, instruct officials to develop legislation to have regulations to incorporate measures, or ministers can instruct officials on whatever processes they deem appropriate. I think we're just in a position of responding to what our ministers have instructed us to do.

I think your question is broader.

[Translation]

Mr. Daniel Turp: You will understand my point of view. I have already raised the issue in other forums where legislation to implement treaties is being debated. Treaties are of major importance today and they deal with issues that have a huge impact on people's daily lives. If Parliament has no say in these treaties and even in implementing legislation because implementation is done through regulations, elected representatives and parliamentarians will be unaware of major issues. If the decision is made to proceed by regulation for technical reasons or other reasons, is there another forum where parliamentarians, elected representatives, can have a say in the implementation of a treaty like that one, which is so important for fishers in Newfoundland and elsewhere?

[English]

Mr. Earl Wiseman: I think the parliamentary secretary can deal with the broader question.

The Chairman: I think you've made your point.

[Translation]

Mr. Daniel Turp: But perhaps...

[English]

The Chairman: It's well taken, but we have the Gazette that brings regulations very often, and most of us have very little input with those. Maybe the parliamentary secretary could....

Mr. Wayne Easter: I know the point the member is making. I think all members of Parliament are concerned that we do not want to be governed by order in council. But I think mainly with the references in this particular bill to “by regulation” it refers for the most part, as I said in an earlier explanation, to being able to identify the various countries we're dealing with and to make things more transparent and more visible and more concrete to fisheries officers and to others.

There's no intention in the amendments proposed by the government in any sections, whether it's amendment G-6 or other areas, to bypass providing information to members of Parliament.

I think we're trying to put it forward in such a way that the lists and the regulations are transparent and visible by way of the Gazette, to make it more workable in as efficient a way as possible.

(Amendment agreed to on division)

(On clause 2)

The Chairman: We have to get back to clause 2. We moved ahead there, dealing with amendment G-6, which applied to clause 3, so the parts of clause 2 that we stood down we'll now.... Mr. Secretary, you have moved the amendments dealing with....

Mr. Wayne Easter: Yes, G-6, and the consequential amendments to it, Mr. Chair.

The Chairman: Can we pass those and finish with clause 2?

(Amendments agreed to on division)

(Clause 2 as amended agreed to on division)

(On clause 3)

[Translation]

Mr. Daniel Turp: May I ask a question before we pass this amendment?

• 1055

I think it is time to deal with subparagraph 6(e)(ii), which we want to understand clearly. Why does the government want to give itself the power for "designating any area of the sea regulated by the regional fisheries management organization or arrangement," when these areas are already designated by these organizations? Why not incorporate by reference the areas already designated by these organizations? They're the ones that designate the areas and that can mean that you want to give them the power to designate the areas beyond that.

Ms. Nadia Bouffard: Now I understand your comment, which basically deals with the use of the word "délimiter" in the regulatory power. The word "designating" is used in the English version. The purpose of subparagraphs 6(e)(ii) and 6(f)(ii) is to grant the Governor in Council the power to designate or provide for maritime areas that will be covered by UNFA and other treaties. It does not confer the right to do any designating as such, but instead to include the area. In fact, we are providing for the incorporation of a region that has already been designated by the regional organizations.

Mr. Daniel Turp: Yes, but that is not what you are saying. When you use the word "délimiter," you seem to be giving the Governor in Council the possibility to determine that any area of the sea regulated by the regional fisheries management organization is not necessarily the same as those the organizations have designated themselves. In any case, that is what can be understood. Perhaps the words "délimiter les espaces" should be replaced, as they are not as clear as the English expression "designating any area."

Are you prepared to ensure that you do not plan to use this provision to broaden—

Ms. Nadia Bouffard: Of course.

Mr. Daniel Turp: —the areas of the high sea where the Coastal Fisheries Protection Act could apply?

Ms. Nadia Bouffard: That is correct.

Mr. Daniel Turp: So you will not be applying the legislation beyond the high seas zone covered by NAFO?

Ms. Nadia Bouffard: That is the intention. But do you not think that the words "regulated by the regional fisheries management organization" qualify the word "designating"?

Mr. Daniel Turp: Perhaps, but I would propose changing the verb. Foreign states might well interpret this provision as meaning that Canada will designate areas of the sea itself.

[English]

Ms. Nadia Bouffard: Okay.

The Chairman: Just a moment now, because you're suggesting something, and I would take that as an amendment later. On the same discussion—

Mr. Wayne Easter: I have a question to the witnesses, Mr. Chair.

These amendments that we're talking about here are for the implementation of the agreement, so it's already covered by the parameters of the agreement, UNFA, is it not? You can't go beyond that.

Ms. Nadia Bouffard: Yes, you're right. That would limit the authority.

Mr. Wayne Easter: It would limit the authority that you can go...because your first line says “for the implementation of the Agreement, including regulations”, on the English side.

[Translation]

Ms. Nadia Bouffard: The powers set out in UNFA apply only to the areas of the sea that are regulated by the regional organizations.

Mr. Daniel Turp: Mr. Parliamentary Secretary, for greater clarity and to dissipate the concerns of some partners, I would suggest that the word "délimiter" be replaced with another word. That would also confirm the intention not to apply the legislation in an extraterritorial way. It is a question of terminology, but it is in my opinion important for some of Canada's partners, namely the Europeans.

• 1100

[English]

The Chairman: On the same topic, Mr. Stoffer?

Mr. Peter Stoffer: I wanted to have an example of the areas she's referring to. Can she give specific examples of areas that would be regulated under the regional fisheries management organization or arrangement.

Ms. Nadia Bouffard: Of the NAFO regulatory area.

Mr. Earl Wiseman: The NAFO regulatory area in the NAFO convention is defined with a whole series of longitude and latitude points. Those are the delimitations of the NAFO regulatory area and those are the points that would be put in our regulations.

Mr. Peter Stoffer: Just for clarification's sake, would the Flemish Cap and nose and tail be part...?

Mr. Earl Wiseman: Absolutely, and further. It's bigger than that.

Mr. Peter Stoffer: Very good.

The Chairman: We've had some general discussion.

Mr. Parliamentary Secretary, going back to your amendments, are you moving G-7?

Mr. Wayne Easter: I think we already agreed to that. G-7 is consequential. But I think we have to go back, Mr. Chairman, to G-2 or G-3.

The Chairman: No, we're all cleaned up.

Mr. Wayne Easter: We're agreed then to where, Mr. Chairman?

The Chairman: Are we satisfied with G-8? So we're satisfied with G-8. We're ready then for a motion to accept clause 3. And you move that—

Mr. Wayne Easter: Yes, I move that, Mr. Chairman.

The Chairman: Again on division?

[Translation]

Mr. Daniel Turp: Is it amendment G-7 or G-8?

[English]

Mr. Wayne Easter: G-3, G-4, G-5, G-6, and G-8 were consequential. G-7 was consequential to G-1. There is amendment G-5.

(Clause 3 as amended agreed to on division)

(On clause 4)

The Chairman: You have amendment G-9, Mr. Easter.

Mr. Wayne Easter: We didn't deal with G-5. G-5 isn't consequential, though.

A voice: But it was carried as a package.

Mr. Wayne Easter: All right. That's great.

G-9, Nancy.

Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): I move amendment G-9. There have been so many changes.

Mr. Wayne Easter: You're all right. There have been no changes to that. Clear as mud, Mrs. Karetak-Lindell.

The Chairman: Mrs. Karetak-Lindell has moved G-9 as circulated.

For the purposes of the committee, G-9 is circulated as a two-page text, one French, one English. Do G-9 English, and the French that is attached to it is still the same.

Nancy, can you give us an explanation of G-9?

Mrs. Nancy Karetak-Lindell: I think we covered some of it this morning with Gary Lunn, but the amendment is to introduce new language for section 7.01, and we're hoping this proposed amendment will eliminate the misunderstanding and confusion that arose from previous discussions—which I think you were a party to, but they'll all be new to me—with this provision during previous hearings of this committee and in the House.

It's important to note that the purpose of this amendment is not to change the rule set out in section 7.01. This section requires Canada to seek consent of the flag state before boarding a foreign vessel where pursuit of that vessel from inside Canadian waters to outside Canadian waters has been interrupted. That was shown on the map by Mr. Wiseman earlier. These amendments do not change that requirement, and the intent of this amendment is to clarify the circumstances in which this rule applies.

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Proposed section 7.01 deals with a very specific situation, separate and distinct from the overall UNFA regime that we are attempting to implement through Bill C-27.

With your permission, Mr. Chairman, I could begin a brief explanation of the source of this provision—article 26 of UNFA.

Again, the clause of the agreement addresses the situation where there has been no hot pursuit and a foreign vessel has committed a violation inside Canadian waters and the vessel has since moved out of our waters onto the high seas. In such cases, if Canada wanted to board the foreign vessel outside Canadian waters, it would first have to obtain the consent of the flag state of the vessel.

It is important to note that proposed section 7.01 does not affect the existing power of Canadian enforcement authorities to board a vessel in Canadian waters and take further enforcement action for a violation committed inside Canadian waters. This right still exists and no consent is required.

I'm not sure if we want to use the map for this. I think diagrams have already been written.

An example is if Canadian enforcement authorities, during air surveillance patrols, spot a foreign vessel fishing in a closed area within Canadian waters and there is no patrol vessel nearby. Canadian enforcement authorities are therefore unable to pursue the vessel before it leaves Canadian waters. If during sea patrol Canadian authorities spot the vessel on the high seas, let's say two days later, we would have to then get the consent of the flag state to board the vessel outside Canadian waters.

I'm repeating part of what Mr. Wiseman—

The Chairman: That's a very good explanation.

Is there further discussion on that amendment?

[Translation]

Mr. Daniel Turp: Perhaps he could show us the areas on the map.

[English]

Mrs. Nancy Karetak-Lindell: From what I understand, we're trying to clarify the language so that we do understand that we need consent if it was an interrupted pursuit.

The Chairman: Earl, can you show that on the board again? Or maybe you have a sheet there.

Mr. Earl Wiseman: I think we have some additional props.

[Translation]

Mr. Yvan Bernier: I thought that according to the agenda we were to start at 9:00 a.m. and end at 11:00 a.m.. Is the meeting to go on until noon? If that is the case, I will have to leave and come back a little later, after having taken care of some obligations. How long do we plan to sit?

[English]

The Chairman: We started a bit late this morning. People arrived and I think we started about 9:10 a.m. I would probably give another five minutes, and by 11:10 a.m. we'll check with the committee to see where we are with this.

Mr. Earl Wiseman: Very quickly and simply, we have a foreign vessel that's fishing within Canadian waters without any authority. We potentially have an aircraft that flies over and sights the vessel there. We don't have a patrol vessel available. Our patrol vessel might be outside the 200-mile zone, so it cannot engage in hot pursuit. Several days later this foreign vessel is outside 200 miles. Our patrol vessel is close by. It then approaches the vessel. To be able to board the vessel, it now requires the consent of the flag state, and we explained a little earlier the rationale for that.

Under the UNFA regime, if the vessel was outside and it was suspected of committing any infringement against the UNFA regime, we could board that vessel and take action, without the consent of the flag state.

• 1110

So this amendment is just clarifying the language to make it clear that it's only in one unique circumstance that we need consent to board a vessel on the high seas that had been sighted inside our waters, we were not able to initiate hot pursuit, and we were only able to approach it outside 200 miles. In that one circumstance we need the consent. But in terms of the UNFA regime, for an action the vessel may have taken outside 200 miles, we don't require any consent.

Mr. Daniel Turp: Where are the NAFO regulations on that?

Mr. Earl Wiseman: The NAFO regulatory area is the entire black area here. This is our 200-mile zone.

Mr. Daniel Turp: Okay.

You just mentioned the case where a foreign vessel was in the 200-mile fishing zone limit. Could you explain again what can happen if we're in a NAFO regulatory zone?

Mr. Earl Wiseman: If a foreign vessel is fishing in a NAFO regulatory area and it comes from a flag state that's a party to the UN convention, we have a right to approach that vessel and inspect it without consent. We have a right to search it and determine whether in fact the NAFO regulatory measures have been complied with. If we find there's been an infringement, we have an obligation to notify the flag state to inform them that we have found an infringement and we would like the flag state to assert its authority to take over control of the vessel to ensure appropriate judicial measures are taken against that vessel.

The Chairman: Peter, do you have a question?

Mr. Peter Stoffer: This may have been asked before, and excuse my ignorance in this question, but what if it's a ship that's not participating in any of our agreements? I'll call it a renegade ship.

Mr. Earl Wiseman: There's no action we can take unless it is covered by C-29.

Mr. Howard Strauss: What we're providing for is a situation where we're asking the flag state for the authority to be able to board. We could always ask for the authority to be able to board.

Mr. Peter Stoffer: I ask that question because this entire document is for agreements with countries and states we have agreements with. What is stopping a particular country from flying the flag of another country that's not part of it and doing all the infractions? You're saying if they're not part of this agreement, then there's not much we can do.

[Translation]

Mr. Daniel Turp: It is called flying a flag of convenience.

[English]

Mr. Earl Wiseman: It's a flag-of-convenience issue that you're raising.

One would hope that as the new international fisheries management regime evolves—and we're seeing evidence of this—there will be fewer and fewer of these kinds of countries. Countries that had in the past basically sold their flags and allowed vessels under their flags to do whatever they saw fit are now no longer doing that. They are now putting limits on vessels. We know there are certain countries that would formerly flag vessels to fish in the NAFO regulatory area. They no longer do that unless those vessels will comply with NAFO measures. In the northwest Atlantic, the number of non-contracting party or flag-of-convenience vessels has significantly decreased.

The obligation is always on the flag state, so one would have to assume that flag states are asserting their responsibilities over their vessels. We have to take them on good faith. We have a stronger moral authority when we ask the flag state to give consent to take some action because of the evolving state of international law in fisheries.

Mr. Peter Stoffer: Just for my own clarification, and my final point, this entire Bill C-27 would not apply to a flag-of-convenience ship. Is that correct?

Mr. Earl Wiseman: That's correct.

Mr. Peter Stoffer: Thank you.

[Translation]

Mr. Daniel Turp: But are there not other treaties or agreements that apply to such vessels? Would they not be covered by the provisions of...

• 1115

[English]

Mr. Earl Wiseman: Right now, Bill C-29 applies to six countries that are listed in the regulation. Additional countries could be added and countries could be taken out.

The Chairman: Are there any further questions on amendment G-9?

(Amendment agreed to on division [See Minutes of Proceedings])

Mr. Wayne Easter: You may not want to hear this....

(Clause 4 as amended agreed to on division)

The Chairman: Mr. Easter, you said you have something I don't want to hear. It's also past time. Is that what I don't want to hear?

Mr. Wayne Easter: No, I have another amendment. It's not really an amendment. It is an amendment, Mr. Chair, but it's....

The Chairman: I would like to determine the wishes of the committee about continuing or coming back to finish on Thursday.

Mr. Paul Steckle (Huron—Bruce, Lib.): Let's come back on Thursday.

Mr. Wayne Easter: If we deal with one more amendment, we'll be done.

An hon. member: Why don't we finish it?

[Translation]

Mr. Yvan Bernier: All we have left to consider is one of the amendments moved by the government party. We can do the clause-by- clause consideration of the bill on Thursday and adopt it. All we have done up until now is try to understand the clauses. I do not think that we have already passed them.

[English]

The Chairman: With the exception of the one current amendment that's on the table—and I will emphasize “on the table”—we have carried all of the clauses up to the end of clause 4. If there are other amendments to come, we haven't received them yet. What I think Mr. Easter is saying is that if we continue with his other amendment, we might be able to finish the bill this morning, probably in about ten minutes.

[Translation]

Mr. Yvan Bernier: We are not prepared to pass the bill this morning. Mr. Turp clearly explained that we are attempting to understand the scope of some clauses and we have expressed our concern over the choice of certain verbs in the French text, which might well lead to interpretation problems. We would like to have an opportunity to consult our dictionaries to come up with some good synonyms and to propose some changes. Some things are just not expressed in the same way, with Molière being Molière and Shakespeare being Shakespeare.

[English]

The Chairman: I would like to point something out. I would like to thank the Bloc, because the official opposition members have left the meeting. They haven't been here for the last hour or two to give their point of view, whatever it might be. I know Mr. Lunn has been critical of people on the committee, but when you're not here it's hard to know.

With that, we will adjourn until Thursday, when we will continue at 9 a.m. If you have amendments, we would appreciate it if you get them to the clerk as soon as possible so that they can be circulated and so that we will be able to work from there.

We stand adjourned.