Cablegate: Canadian Fisheries Legislation -- Third Time Charm?

DE RUEHOT #0094/01 0172015
R 172015Z JAN 08





E.O. 12958: N/A


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.


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

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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.


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.

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