CANADIAN FISHERIES LEGISLATION -- THIRD TIME CHARM?

UNCLAS SECTION 01 OF 02 OTTAWA 000094 SIPDIS SENSITIVE SIPDIS STATE FOR WHA/CAN AND OES/OMC; NOAA FOR NMFS E.O. 12958: N/A TAGS: EFIS SENV PREL CA SUBJECT: CANADIAN FISHERIES LEGISLATION -- THIRD TIME CHARM? -------------- Summary -------------- ¶1. Summary: On November 29th, 2006, Fisheries and Oceans Minister Loyola Hearn introduced a new bill to Parliament to modernize Canada's 139-year-old Fisheries Act. While there is unanimous agreement that the Act must be updated, there are differences among stakeholders regarding changes that should be made, and how far those changes should go. This is the third attempt in a decade by the Department of Fisheries and Oceans (DFO) to update the Fisheries Act. Barring an unforeseen early election, DFO officials believe the Government will have sufficient time to pass the legislation by October 2009 -- the latest date by which national elections must be held. End Summary. -------------- Background -------------- ¶2. Canada's Fisheries Act is the federal law that governs the management of fisheries and the protection of fish habitat in Canada. It was enacted in 1868, the year after Canada was formed. That was before all the provinces and territories now on Canada's coasts -- most notably the provinces of British Columbia, Newfoundland and Prince Edward Island -- had entered Confederation, and before modern fishing practices and technologies had been developed. The archaic character of the Act is most visible in the authority it gives to the Minister, who has "absolute discretion" to make decisions about and manage Canada's fisheries. This is still upheld by the Canadian legal system. Commented one DFO contact, "We don't lose court cases." ¶3. DFO initiated its drive to reform the Act in the late 1990s. Its first effort was shot down by environmental NGOs who insisted on the inclusion of stronger habitat provisions. A second bill was preceded by several years of discussion between DFO officials and stakeholders, but it died last September when the Government prorogued Parliament. DFO officials took the opportunity before resubmitting their draft to make changes to the text to address certain recurring criticisms. The result was the present Bill C-32. -------------- What is Changed -------------- ¶4. The most fundamental change that will occur should Bill C-32 be passed is that the Minister will no longer have absolute authority in law over granting licenses, permits and quotas. Stated Minister Hearn when he introduced the bill in Parliament, "In the 21st century it is not acceptable to have a system that allows politicians to determine who gets what fish without any type of public accountability." (Hearn was overstating the case somewhat, as much of the Minister's current authority is delegated to various officials and representative bodies in somewhat transparent arrangements.) Licensing rules and criteria will be set out in regulations under the new Act. While the Minister will continue to decide on access to the coastal fishery, licensing officers will issue or refuse individual licenses. A newly-formed Canada Fisheries Tribunal will hear appeals. The Minister will continue to make but in a more transparent process. The feudal days of petitioning the Minister personally and relying on one's political associations will end (or, at least, be significantly reduced). Not surprisingly, some well-connected individuals and firms are quietly unhappy with Bill C-32 for this very reason. ¶5. Concerns of environmental NGOs were addressed by wording that requires the Minister to consider conservation priorities before making licensing and allocation decisions. The new language directs the Minister, among other things, QThe new language directs the Minister, among other things, "to take into account" sustainable development and "to seek" to conserve fish and fish habitat. This is optional language, according to critics, and gives the Minister too much leeway to pursue commercial ends over environmental. In a meeting with embassy officials, Michaela Huard, DFO Assistant Deputy Minister for Policy, opined that many organizations criticizing the new legislation had not actually read the 122-page text of the current Fisheries Act. "People aren't aware of what the law actually is now -- they would be shocked if they knew." ¶6. DFO is proud of new enforcement provisions found in Bill C-32. Instead of relying solely on monetary fines levied by OTTAWA 00000094 002 OF 002 a cumbersome court system, DFO will be able to punish transgressors through a variety of means that could include cutting quotas and confiscating fishing boats. "Many of the big companies look at financial penalties as just another cost of doing business. Taking away their quotas will really mean something." Many of these sanctions will be meted out through a newly-formed Canada Fisheries Tribunal composed of GOC officials, with representation from the scientific/educational and fishing communities. DFO predicts the speed of enforcement for fisheries violations will increase. Ironically NGOs are criticizing the new enforcement provisions because the fines for many fishing license violations will be reduced. In response, DFO points to the new ability to seize fishing vessels and reduce quotas. -------------- Legislative Process -------------- ¶7. The "first reading" (introduction of the bill to Parliament) took place on November 29th. The Harper Government may refer it to committee now -- as some critics are urging -- or wait until after the bill's "second reading" to refer it to committee. The timing of referral to committee will be a political decision. Should the bill be referred before its second reading, committee members will have the ability to change the scope of the bill. A referral to committee after the second reading means that members have agreed in principle on the purpose, intent and scope of the bill, and must limit themselves to technical and administrative changes. Our DFO contacts predict the Government continue to resist pressure for a first reading committee referral. ¶8. There is virtually unanimous agreement that a new Fisheries Act is urgently needed. While legislators will strive to influence the bill in ways that are favorable to their own provincial interests, we understand that it is unlikely that anyone will take specific actions that could endanger its passing. More probable -- but still unlikely -- would be efforts from NGO representatives who could oppose the bill because it does not, in their view, go far enough....a case of the perfect being the enemy of the pretty good. Barring an unforeseen early election, DFO officials believe that the fixed date set for national elections -- October 2009 -- will allow sufficient time to get the legislation passed. -------------- Comment -------------- ¶9. (SBU) Bill C-32 will have little direct effect on how Canada conducts business in multinational fisheries fora and in its bilateral dealings with the United States. "We're just trying to catch up and codify what present practice is," said Huard. In a sense, this is unfortunate, as it seems to reflect the degree of inertia imposed by entrenched interests and key political constituencies in Canadian fisheries policy. DFO fisheries managers are still trying to live down their failure to anticipate and prevent the collapse of the Atlantic groundfish (cod) stocks in the early 1990s, and they continue to find it very difficult to restrict fishing quotas to the levels recommended by scientific advice. This is particularly true on the Atlantic Coast, where the fishing industry continues to represent one of the main economic drivers in constituencies which tend to "swing" between the two leading political parties. Progressive DFO policymakers have broad visions for asserting Canadian leadership in multilateral fisheries conservation and oceans management, but those aspirations tend to founder on domestic political Qbut those aspirations tend to founder on domestic political realities. Given this context, we are not surprised to be told that the new Act is necessary, but that it may not live up to its advanced billing. Visit Canada,s Economy and Environment Forum at http://www.intelink.gov/communities/state/can ada WILKINS