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What we heard: Public consultations for Policies on Fisheries Act Authorizations related to Cetaceans in Captivity and Reproductive Materials of Cetacean

March 2021

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Public consultation for the Policies on Fisheries Act Authorizations related to Cetaceans in Captivity and Reproductive Materials of Cetaceans

In June 2019, provisions were introduced in the Fisheries Act and the Criminal Code aimed at ending the captivity of cetaceans. As a result of these provisions, the following activities are prohibited, except where an authorization or a permit to conduct these activities is issued by the Minister of Fisheries, Oceans, and the Canadian Coast Guard pursuant to s. 23.1 to 23.4 of the Fisheries Act:

The following activities also need to be authorized through a licence from the Minister of Fisheries, Oceans, and the Canadian Coast Guard pursuant to s. 23.1 to 23.4 of the Fisheries Act, or a licence issued by the relevant province, pursuant to s. 445.2 of the Criminal Code:

As a result of the above legislation, Fisheries and Oceans Canada (DFO) has developed a suite of draft policies to guide the Minister of Fisheries, Oceans, and the Canadian Coast Guard in the exercise of her discretion in issuing authorizations, licences or permits under s. 23.1 to 23.4 of the Fisheries Act.

Public consultation was conducted on the suite of draft policies during the summer and fall of 2020 to obtain input to validate or improve the policies, and ensure they are based on appropriate principles that matter to Canadians.

Methods

Public consultation for the Policies on Fisheries Act Authorizations related to Cetaceans in Captivity and Reproductive Materials of Cetaceans was undertaken during a 90-day period, from August 20, 2020 until November 18, 2020. Canadians were able to submit feedback on the suite of policies through an online form accessible via the Consulting with Canadians website and the DFO website. A generic email address was also posted on those same websites, for the responders who wanted to attach documents or had a preference for sending their input through email. DFO shared the link to the consultation on social media via Twitter, Facebook and LinkedIn, and also included this link on the main page of the Departmental website.

Stakeholders with potential interest in the suite of policies, including animal rights groups, Canadian aquariums, provincial and territorial governments, and technical staff of the Nunavut Wildlife Management Board, were invited to comment on the draft policies by the Department through personalized emails. During the consultation period, conference calls to present and discuss the draft policies were held with Marineland, the Vancouver Aquarium and Animal Justice Canada. A discussion with provincial and territorial representatives to provide information on the draft policies and DFO’s consultation plan was also held in July 2020.

Overall, from August 20, 2020 to November 18, 2020, the Department received 23 submissions through the online form and 9,102 emails.

Response to consultation

The majority of input on the draft policies was provided from the general public in the form of two international petitions forwarded through emails. A total of 9,083 emails were received in the form of petitions, which had been posted on animal rights groups’ websites and shared on social media. A petition from the group Animal Justice had approximately 3,900 petitioners, and a petition from the group In Defense of Animals resulted in approximately 5,200 petitioners (based on the number of individual emails received). The Department estimates approximately 30 per cent of petitions were sent from Canadians, and the majority of petitioners were located within the United States and Europe.

In summary, the two petitions called for the following:

The content of the above petitions has been integrated in more detail into the Summary of Key Messages by Theme that is found below, which encompasses the main comments and suggestions that were received during the public consultation.

Overall, the key stakeholders that had been identified for this consultation showed less involvement than DFO had initially predicted. The Department received 13 submissions from various groups including: academia and students, researchers, and animal rights groups. The majority of these submissions came from individuals or organizations located in Canada. A few submissions were also received from Europe, United States, and New Zealand. Some of the respondents took the time to systematically address the details of each policy and provided many ideas and/or wording suggestions. A few members of the general public also elected to submit individual submissions to highlight the most important principles to them.

Summary of key messages by theme

1-Reiteration of Canadians’ support of the legislation aimed at ending the captivity of cetaceans

The great majority of the comments received were indicative of Canadians’ strong support for ending the practice of keeping cetaceans in captivity in traditional aquariums, and for enhanced protections of the captive cetaceans that cannot be released. Despite conveying these positions, several responses indicated that members of the general public misinterpreted the goal of the suite of policies posted for public consultation. For example, while these policies were drafted by DFO to implement the permitting authorities related to cetaceans in captivity found in s.23.1 to 23.4 of the Fisheries Act (which were enacted in June 2019), some respondents believed DFO was seeking to repeal, or amend, the Canadian legislation aimed at ending the captivity of cetaceans. Nevertheless, input submitted based on this assumption was still useful to DFO as an indication of how the Department should communicate on these policies and explain their legal framework.

2-Transparency

A great number of Canadians expressed interest in ensuring cetaceans in captivity will be protected, and understanding the detail of the government’s rationale in issuing permits. While the consultation provided an opportunity to comment on the policies, a significant number of submissions also included requests to increase the transparency of the permitting process related to captive cetaceans and reproductive materials of cetaceans in general. As such, it was suggested that DFO conduct mandatory public consultation on permit requests, especially when they are related to importing and exporting a cetacean, to help inform the Minister’s decisions.

Some respondents added that permit applications should be publicly posted on the DFO website when they are received and being reviewed, as well as information on the permits that have been issued and the rationales behind the decisions. It was also proposed that the methodologies and results of scientific studies conducted on cetaceans or their reproductive materials be made public, when these studies are made possible through Fisheries Act permits.

3-Restrictions on permit issuance for export requests

For many respondents, not allowing the cetaceans currently held in Canadian facilities to move to another country was seen as the best option available until seaside sanctuaries become available. It was underlined that transferring cetaceans involves risks to their psychological and physical welfare, and that Canada offers stronger protections than other countries to cetaceans, mainly through the Criminal Code prohibitions on breeding cetaceans and using cetaceans for performance for entertainment purposes. As such, many of the suggestions received were aimed at further restricting the issuance of export permits by adding additional requirements, or requiring DFO to collect more information to support decision-making on the permit applications.

Stakeholders frequently stated that all moves should be based, first and foremost, on welfare benefits. To that end, it was requested that DFO include more restrictive requirements on potential breeding and public use of the cetaceans in the policies, should someone seek to export a cetacean from Canada to a foreign facility. For example, it was mentioned that DFO should require a commitment that the cetaceans will not be used for human entertainment or used in breeding programs, and that DFO should require a detailed non-breeding plan from the destination facility.

Many respondents suggested that the Department should also require a comity letter from the governments of the destination facility, which would state that activities such as breeding, public display for performance or shows, interactions between visitors and cetaceans, or subsequent transfers (unless exceptional circumstances) would not occur. Others added that DFO should ask for regular follow-up reports from facilities that have received a cetacean from Canada, and that sanctions (such as not granting subsequent transfers to the facility) should be established by DFO to address non-compliance.

4-Clarity and level of detail

Stakeholders provided suggestions related to adding or refining terms and definitions to improve the clarity of the suite of policies. The most frequent terms in the policies for which clarity was requested were “best interests of the cetacean’s welfare”; and “exceptional/ extenuating circumstances” that would justify a ministerial decision or allow for a practice that is normally not a preferred one as per the policies.

With regard to defining and assessing “best interests of the cetacean’s welfare”, it was suggested that this could be done through a series of physical, psychological, social and husbandry considerations; a decision-tree tool to help make decisions; or, a scientific methodology to measure cetacean’s welfare (the C-Well Assessment). It was also recommended that the policies should: indicate that valid scientific research means “bona fide research that is likely to benefit wild cetaceans”; provide definitions of “conservation of wild stocks” and “scientific research”; and include criteria to assess whether proposed scientific research can support conservation of wild stocks.

Overall, these comments suggested that a lack of clarity in the above terms may lead to loopholes or a lack of science-based decisions in issuing permits.

5-Authorization to fish for a wild cetacean with the intent of taking it into captivity

Most Canadians and stakeholders expressed concerns regarding the possibility that a healthy wild cetacean could be fished with the intent to take it into captivity to conduct scientific research. Stakeholders stated that this possibility should not be included into the suite of policies, as they felt it would be inconsistent with the spirit of the Canadian legislation. They added that a wild cetacean should only be fished to be taken into captivity if the animal is in distress or injured. Some respondents suggested adding more detail in the policy on the circumstances that would be used to fish for a wild cetacean with the intent to take it into captivity, including considerations related to humane and appropriate fishing methods.

It was also suggested that any rescue effort that includes rehabilitation in captivity should only occur for a temporary and pre-determined (short) period of time, under constant veterinary advice and supervision, and only in cases where the cetacean has a high likelihood of responding to treatment, for a swift release back into the wild. Other responders added that all possible steps should be taken to minimize the time a rescued cetacean spends in captivity and its interactions with humans.

A few people mentioned that euthanasia, instead of long-term captivity, was preferable for injured or sick cetaceans that have poor chances of being rehabilitated and released into the wild. Others were supportive of keeping rescued cetaceans in captivity as a last resort, if they cannot be released into the wild with an expectation of a good life, including good physical and mental health. It was also mentioned that non-invasive science that is likely to benefit wild stocks of cetaceans could be conducted on rescued cetaceans that cannot be released, as long as the best facility is selected for their welfare.

With regard to possible escapees from seaside pen, one respondent flagged that they should be captured only if they would not naturally be found in that location, and if their health and welfare are deemed compromised or at risk by relevant experts.

It was also frequently noted that decisions about injured or ill wild cetaceans should be made by independent veterinarians and scientists with expertise in cetacean welfare.

6-Transportation plans and integration plans

Stakeholders highlighted that importing or exporting a cetacean always involves significant risks. It was suggested that DFO establish more rigorous transportation requirements than those currently in place (which are related to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) permitting process) to take into account physical and psychological stress or risks, and ensure that mitigation strategies are in place. To that effect, DFO was invited to give consideration to all of the factors associated with transportation that may impact the cetacean’s welfare: from the removal from tanks, to the transport by truck and plane, to the introduction to the new physical, husbandry and social environment at the receiving facility. It was also mentioned that DFO should request an assessment of the individual cetacean’s health before authorizing a transfer.

7-Animal care and use protocols, and standards of care in general

Many respondents indicated that DFO’s proposal to use the Canadian Council on Animal Care (CCAC)’s published guidelines to review the Animal Care and Use Protocols associated with scientific projects, or to validate the standards of care of a Canadian facility in the context of an import project, was inadequate. They suggested that facilities should be required to meet more stringent, species-specific and science-based standards of care.

It was also mentioned that grandfathered cetaceans in Canada (i.e. those already in captivity when the legislation on cetaceans in captivity entered into force in June 2019) should also be subject to these enhanced standards of care. Some respondents indicated that, since there are parallel federal and provincial authorities in Canada with regard to cetacean’s welfare, DFO should work with provincial jurisdictions to achieve the legislation’s intent of phasing out the captivity of cetaceans and harmonize permitting policies regarding captivity, breeding and entertainment.

With regard to permit requests to export cetaceans, it was also mentioned that DFO’s proposal to rely on accreditations such as those issued by the American Humane; the United States Association of Zoos and Aquariums (AZA) and Alliance of Marine Mammal Parks and Aquariums (Alliance); and/or the European Association for Aquatic Mammals (EAAM) to validate the standards of care at the destination facilities was inadequate. DFO was invited to encourage practices and care standards such as those of the Global Federation of Animal Sanctuaries (GFAS).

Finally, to make better informed decisions on cetaceans import or export requests, it was recommended that DFO set out further detail in the policies regarding the factors that could be used to inform a comparative review of the facilities and their standards of care. To that end, a few lists of suggestions were provided.

8-Scientific research

During the public consultation, many comments were provided with regard to scientific research on captive cetaceans or their reproductive materials. In general, it was suggested that permits to conduct research on cetaceans in captivity should be restricted to opportunities where the anticipated benefits of the research would far outweigh any potential negative impacts on the individual cetaceans. It was also mentioned that the research should not in any way contribute to increasing the number of cetaceans currently held in captivity.

Many comments expressed concerns that the welfare of cetaceans was not a clear consideration in the draft policies related to permits to conduct research on cetaceans in captivity. As part of this concern, stakeholders suggested that DFO require additional information specifically focused on the welfare of cetaceans from facilities intending to conduct research, including:

In addition, it was also suggested by some that a scientific research permit not be granted in the case where the transfer would adversely affect the cetacean’s welfare, or in the case the cetacean would be housed at a new facility that would not provide similar or improved welfare conditions.

A few submissions mentioned that research involving studies in captivity is unlikely to contribute to the conservation of wild cetaceans. Furthermore, to limit risks to cetaceans, it was suggested that DFO should seek a justification of why the proposed research cannot be conducted on wild cetaceans in their natural habitat or in seaside pen sanctuaries; or why it cannot be conducted at current location. In the same vein, it was highlighted that the proposed scientific studies should not be duplicative of existing research, should be expected to provide significant increased knowledge that is deemed essential by DFO, and should be consistent with the CCAC 3Rs approach, where researchers must consider methods to replace or avoid the use of sentient animals in research as much as possible.

With regard to reproductive materials of cetaceans, one petition stated that, to avoid creating more captive cetaceans, Canada should not be importing or exporting reproductive materials from or to other countries. One marine mammal research scientist flagged that the policies should clarify that the legal prohibitions found in the Fisheries Act and the Criminal Code do not apply to non-viable reproductive materials of cetaceans destined for scientific research, as the spirit of the law was to avoid artificial insemination. The same scientist also mentioned that, in Canada, the possession of reproductive materials of cetaceans can already require, for example, a Species at Risk permit, or a CITES permit to export these materials.

Some respondents mentioned that they would like to see stronger language in the policies regarding the potential breeding of cetaceans or use of reproductive materials of cetaceans, which “must” (not “should”) never contribute to the replenishment of captive stocks of cetaceans. It was also added that the use of reproductive materials for research “must” (not “should”) be aimed at conserving a stock of wild cetaceans.

Others commented that is not only breeding for the purpose of replenishing captive stocks that must be avoided, but any breeding in captivity. It was also suggested that DFO should require a binding letter of comity from countries where reproductive materials are being imported, to ensure that these materials will not be used to breed captive stocks of cetaceans. If, despite all restrictive requirements in place, captive cetaceans were to be born following export of reproductive materials, one respondent mentioned that DFO should ensure that the scientific research that could be conducted on the cetacean would have merit and protect the cetaceans’ welfare.

A few respondents sent submissions to DFO to advocate for breeding cetaceans in captivity. One submission underlined that, in some specific circumstances, controlled breeding of cetaceans in captivity, followed with reintroduction plans in their natural habitat, could help in getting wild populations back up to a healthy number. It was also added that studying natural breeding behaviors in captivity may help with rebuilding cetacean populations at risk, and would contribute to the welfare of the cetaceans by not impeding a natural behavior.

9-Sanctuaries

In general, many Canadians expressed that they would prefer that cetaceans be relocated into sanctuary or seaside pen facilities rather than remaining housed in traditional facilities. Further, some participants felt that sanctuaries should be the only solution, or should be provided with a preference over traditional facilities, when import or export permits are requested or when a rescued wild cetacean is in need of rehabilitation. Some participants supported a greater inclusion of sanctuaries within the policies, including the addition of the Global Federation of Animal Sanctuaries (GFAS) as an accrediting body to allow for sanctuaries to apply for permits under the Fisheries Act. It was also suggested that DFO should secure agreements with facilities for suitable candidates to be transferred to sanctuaries once they are available, and that it should also be possible to import cetaceans to Canada if the destination is a sanctuary.

10-Wildlife trade

Some submissions mentioned that the trade of cetaceans between public display facilities should be prevented, since these transfers tend to increase the commercial value of captive cetaceans, thus encouraging further captures and trade in individuals. It was underlined that curbing the trade of cetaceans (and wildlife in general) would help prevent animal cruelty, species’ extinction and the loss of biodiversity.

11-Decision making

Through this consultation, participants expressed positivity at the chance to view and provide input on the suite of policies that will guide the Minister in making decisions to issue permits regarding cetaceans under the Fisheries Act. However, it was felt by many respondents that the Department should be seeking to create an independent advisory committee of experts (including researchers and veterinarians focused on marine mammals, husbandry and transport experts, and animal welfare experts) to advise for interpretation of research, conservation and welfare considerations during permit applications. They felt that DFO should pursue this option to provide the Minister with recommendations and assist in his or her decision-making on issuing permits.

Some stakeholders expressed concerns about the language in the draft policies that mentions that the Minister retains absolute discretion to make exceptions to the policy principles. They indicated their preference in changing the suite of policies into regulations, so the principles would be binding on ministerial decisions, which would ensure consistent decisions in the future. Suggestions about strengthening policy language (i.e. replacing “should” by “must” in many occurrences) were also made to further limit possible exceptions to the principles.

Next steps

The comments received have provided valuable direction in the development of the suite of policies. DFO is now preparing for the final publication of the suite of policies, planned for spring 2021.

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