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Archived Government Response - 10th Report of the Standing Committee on Fisheries and Oceans, on Foreign Overfishing: its impacts and solutions - Conservation on the Nose and Tail of the Grand Banks and the Flemish Cap

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The 10th Report of the Standing Committee on Fisheries and Oceans urges the Government to withdraw from the Northwest Atlantic Fisheries Organization (NAFO) and to establish custodial management over the Nose and Tail of the Grand Banks and the Flemish Cap outside Canada's 200-mile limit. Other recommendations made by the Committee for addressing foreign overfishing in the NAFO Regulatory Area include information campaigns, use of Bill C-29 provisions of the Coastal Fisheries Protection Act and application of the United Nations Fish Stocks Agreement (UNFA).

The Government thanks the Committee for its recommendations and its extensive efforts to address this issue. The Committee's recommendations are a sincere and honest reflection of a large array of representatives that voiced their opinions to the Committee. The Report reflects a deep and long-standing frustration on the part of the Province of Newfoundland and Labrador, its fishing industry, fishers and general public with the problems of non-compliance by foreign fishing vessels in the NAFO Regulatory Area over an extended period of time.

The Government of Canada takes the issue of foreign overfishing in the NAFO Regulatory Area very seriously and is addressing the issue through a number of measures. Over the past year, Canada has highlighted the problem of the increasing trend of non-compliance in the NAFO Regulatory Area and has raised its concerns with other NAFO Contracting Parties. It has closed its ports to the fishing vessels of the Faroe Islands and Estonia as a result of significant misreporting and overfishing of shrimp. It has announced a new approach for denying rogue vessels active in the NAFO Regulatory Area access to Canadian ports. Finally, the Minister of Fisheries and Oceans has announced a roundtable forum to discuss ways of improving the conservation and management of straddling fish stocks on the East Coast of Canada. Canada is committed to working within NAFO to improve compliance with the NAFO Conservation and Enforcement Measures and to ensure the conservation and sustainable management of the fisheries resources of the Northwest Atlantic Ocean. It is also committed to implementing the provisions of the 1995 United Nations Agreement on Straddling and Highly Migratory Fish Stocks. Finally, it is committed, consistent with international law, to seeking opportunities over time to further advance Canada's role in the management of straddling stocks on Canada's Continental Shelf.

The Government has reviewed the Report and its recommendations in depth. While some recommendations, notably Recommendation one to work for the improvement of observer reports in NAFO, are helpful, a number of the Recommendations are problematic as their implementation would not lead to effective solutions to this issue and indeed, would compromise Canadian interests on several levels.

The following are the Government's responses to the respective recommendations.

Recommendation 1

That the Canadian Government pursue discussions with the NAFO Fisheries Commission to establish a process whereby observer reports would be more transparent and would be submitted in a timely fashion.

More timely submission of observer reports would increase transparency and support more meaningful analysis of compliance in the NAFO Regulatory Area. It would also enable appropriate follow-up action by the flag State, i.e. if possible violations are detected by the observer, then authorities of the flag State can undertake a full inspection at port.

Canada has made representations to other NAFO Contracting Parties on the need to comply with NAFO requirements for the submission of observer reports. The Minister of Fisheries and Oceans has recently discussed with his counterparts in Spain, Portugal and the European Union the possibility of exchanging draft observer reports more quickly through electronic means so as to detect more quickly potential infringements and to help target port inspections to those vessels with possible violations.

The Government of Canada supports this recommendation and will continue to pursue efforts within NAFO to achieve transparent and timely observer reports.

Recommendation 2

That the Government of Canada amend the Coastal Fisheries Protection Act to empower it to implement Custodial Management of fisheries resources on the Nose and Tail of the Grand Banks and on the Flemish Cap.

In the early phases of negotiations resulting in the United Nations Convention on the Law of the Sea, Canada advocated coastal State jurisdiction over the entire range of fish stocks off their coasts. For Canada, this would have meant fisheries jurisdiction over the Nose and Tail of the Grand Bank as well as the Flemish Cap. This proposal was opposed by most States at the time as an encroachment on the traditional freedoms of the high seas, notably freedoms of fishing and navigation. Canada also argued for variations on coastal State jurisdiction whereby multilateral regional fisheries organizations such as NAFO would allocate the resource, but coastal States would establish and enforce the fishing rules. These positions were also rejected by the international community.

The delicate balance arrived at in UNCLOS after decades of negotiation recognized the sovereign rights of coastal states to explore, exploit, conserve and manage natural resources, including fish stocks, in a 200-mile exclusive economic zone (EEZ). This provision has been accepted by the 138 parties to UNCLOS and has been implicitly recognized by the 32 parties (including Canada) to UNFA. The provision is so widely accepted, it is considered to be part of customary international law.

Achieving multilateral agreement for the establishment of Canadian custodial management over the full extent of Canada's Continental Shelf would require changing the international consensus around the 200 mile zone. In the current context, there would be very little support for amending one of the most fundamental provisions in UNCLOS to extend fisheries jurisdiction beyond 200 miles. In particular, maritime and distant water fishing States would oppose any such extension as they view the current EEZ as a major concession to coastal States.

Given the wide-acceptance of the 200 mile zone, any attempt to unilaterally extend fisheries jurisdiction beyond 200 miles would not be accepted by the international community and can be expected to attract a strong, negative reaction. There seems to be the view that "custodial management" may be more palatable to the international community than extension of fisheries jurisdiction. This is an erroneous view; the activities the Committee recommends comprise custodial management and would be seen by the international community as an extension of jurisdiction.

Recommendation 3

That the government of Canada inform NAFO and its Contracting Parties that Canada will withdraw from NAFO and proceed with the implementation of custodial management on the Nose and Tail of the Grand Banks and on the Flemish Cap no later than one year following the September 2002 NAFO meeting.

Issues relating to custodial management have been discussed above.

The potential consequences of a Canadian withdrawal from NAFO need to be carefully considered. If Canada withdrew from NAFO, then it would no longer benefit from information obtained from NAFO's programs, such as the observer program, the vessel monitoring system, catch reporting requirements and the joint inspection and surveillance scheme. The latter permits NAFO Contracting Parties to board and inspect fishing vessels of other NAFO members; Canada and the EU both carry out inspections under this scheme. As a result, Canada's ability to detect and deter violations would be greatly reduced, and there would likely be significant increase and widespread non-compliance with NAFO measures by fishing vessels of other Contracting Parties. Canada would also have relinquished its membership in an Organization that is mandated by its Convention to take into account Canadian interests in allocating quotas and is required to seek consistency with Canadian conservation measures.

Canada's withdrawal from NAFO could conceivably lead to the dismantling of the Organization. It would be difficult for other NAFO Contracting Parties to offset Canada's financial contributions to the NAFO budget, the contributions to scientific research, and the contributions to monitoring, control and surveillance.

Thus, by withdrawing from NAFO, the results would likely either be an Organization operating off Canada's shores with no obligation or incentive to consider Canadian interests, or at worst, a defunct Organization leading to an unregulated high seas area.

Should Canada attempt to deal with an unregulated high seas area by imposing custodial management, it would be vigorously opposed internationally. Masters of fishing vessels flagged to States not party to UNFA would resist unilateral boarding and inspection in the area outside Canada's 200-mile zone. Foreign patrol vessels could be sent to assist their fishing vessels in protecting their right, under international law, to fish on the high seas. The potential for confrontation and the impacts on the conservation of fish stocks should not be underestimated.

Despite the inadequacies of NAFO, it is far better to have an internationally agreed regime than no regime at all. The practical challenge is to find ways to make NAFO work more effectively. Canada is committed to fixing these problems and to working constructively with all the NAFO Contracting Parties at all levels to strengthen NAFO performance. Canada's goal is an improved NAFO, where conservation rules are stronger, violations are acted upon by member countries and compliance is improved.

As well, it should be noted that the timeframe for withdrawal from NAFO is not consistent with Canadian obligations under article XXIV of the NAFO Convention.

Recommendation 4

That the federal Government conduct a targeted public information campaign to increase public awareness of violations of NAFO conservation measures by vessels under the flag of member states and to canvas support among the more environmentally responsible segments of the public to end the abusive exploitation of the fisheries resources of the Northwest Atlantic.

The Government of Canada fully supports the need to increase awareness of violations of NAFO conservation measures by vessels under the flag of member States and to canvass for public support. Since January 2002, the Department of Fisheries & Oceans has conducted targeted public information campaigns and will continue to do so beyond the September NAFO meeting in Spain. Various communications activities have been carried out, or are planned, to increase public understanding of foreign fishing issues. Targeted media relations are undertaken regularly to promote understanding, as well as to correct factual errors.

Over the past few months, technical and media briefings were provided to national and regional news outlets. In May 2002, the Minister conducted briefings following meetings with European Parliamentarians in Montreal. In late June, he also briefed Canadian and international media representatives during his meetings with key fisheries ministers in Europe, where he outlined Canada's position on the importance of compliance with NAFO regulations, and the shared responsibility of all fishing nations to conserve the North Atlantic fisheries resources.

In May 2002, DFO gave access to a national television reporter and film crew to attend a two-week surveillance patrol aboard the Leonard Cowley. This resulted in a series of nationally broadcasted news reports and interviews that clarified Canada's role within the framework of NAFO regulations. The reports highlighted the challenges of enforcing these regulations for Canadian viewers who may have been unfamiliar with the issue.

To facilitate access to information on NAFO and foreign fishing activities, the Department of Fisheries & Oceans is developing an "international fishing in Atlantic Canada" section on the DFO web site. This section will include statements and announcements, news releases, and links to the various international fisheries organizations to which Canada belongs.

In addition, information and statistics about fishing activities in the NAFO Regulatory Area (NRA) and port visits by foreign fishing fleets, and fact sheets that provide background on issues and policies will be posted and regularly updated on the "international fishing in Atlantic Canada" portion of the website.

Recommendation 5

That Canada make clear that it is prepared to use the provisions of Bill C-29 against NAFO members who have not ratified UNFA and in the case of NAFO members who have ratified UNFA, Canada is prepared to use its provisions to ensure conservation. Canada could demonstrate that it is serious about its intentions by prescribing offending countries in the Coastal Fisheries Protection Regulations."

Canada is facing a set of circumstances in the NAFO Regulatory Area which are different from the early 1990s and are best dealt with by means more appropriate to the time. The Government does not have at this time the intention to amend the provisions of the Coastal Fisheries Protection Act, or the ancillary regulatory amendments, that were introduced by Bill C-29. Canada has demonstrated its seriousness in addressing non-compliance in the NAFO Regulatory Area by other means, such as closing its ports to countries whose vessels have seriously breached NAFO's conservation and control measures and announcing a new approach to deny port access to rogue vessel active in the NAFO Regulatory Area.

UNFA has entered into force and, as is the case with any treaty to which Canada is a party, Canada intends to apply its provisions vis-à-vis other parties to the Agreement including those that are members of NAFO. These States include: Iceland, Norway, Russia and the United States of America. Other NAFO Parties are currently not party to the UNFA, and therefore Canada cannot apply the Agreement against vessels from these countries.

When ratified and fully implemented by key fishing nations, UNFA will provide an effective conservation and management regime for straddling and highly migratory stocks around the world, and in particular in NAFO. The Government of Canada will continue, through various channels, to urge States, in particular key fishing nations, that have not done so, to ratify or accede to UNFA and fully implement its provisions.