Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill S-3, An Act to amend the Coastal Fisheries Protection Act (alternative title: Port State Measures Agreement Implementation Act) was introduced in the Senate on 23 October 2013 and subsequently passed without amendment. In the House of Commons, the Standing Committee on Fisheries and Oceans amended the bill on 29 April 2015.
Bill S-3 was previously introduced during the 1st Session of the 41st Parliament as Bill S-13. That bill died on the Order Paper with the prorogation of Parliament on 13 September 2013.
Bill S-3 amends the Coastal Fisheries Protection Act 1 to implement the United Nations Food and Agriculture Organization (FAO)’s 2009 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. 2 In addition, the bill extends Canadian controls over foreign fishing vessels seeking access to Canadian ports, adds to the Act prohibitions related to importing illegally acquired fish and marine plants, and clarifies some of the Act’s administration and enforcement provisions.
The Coastal Fisheries Protection Act regulates foreign fishing vessels fishing in Canadian fisheries waters,3 as well as harvesting sedentary species on the continental shelf of Canada beyond Canadian fisheries waters.4
In 1994, the Act was amended to extend its application to the Northwest Atlantic Fisheries Organization (NAFO) Regulatory Area, a very large area of the Atlantic Ocean on the high seas.5 The Act now prohibits prescribed classes of foreign fishing vessels from fishing for straddling stocks in the NAFO Regulatory Area in contravention of any prescribed conservation and management measures.
Parliament amended the Act again, in 1999, to implement the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the “Fish Stocks Agreement”) of 1995. 6 The Act now prohibits fishing vessels of any state participating in the Fish Stocks Agreement from contravening prescribed international conservation or management measures in prescribed areas of the sea. The 1999 amendments also enabled the implementation of further international fisheries treaties or arrangements to which Canada is a party by prohibiting the contravention of prescribed measures in prescribed areas of the sea, and adding related regulatory powers. Finally, the 1999 amendments included a prohibition against fishing vessels without nationality fishing in any such prescribed areas of the sea.
The FAO Conference approved the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (the “Port State Measures Agreement”) on 22 November 2009. Canada signed the Port State Measures Agreement on 19 November 2010, but has yet to ratify it.7 As stated by Fisheries and Oceans Canada, the amendments to the Coastal Fisheries Protection Act contained in Bill S-3 will assist Canada “to meet its international commitments regarding the PMSA [Port State Measures Agreement].” 8
As described by the FAO,
[t]he Agreement aims to prevent illegally caught fish from entering international markets through ports. Under the terms of the treaty, foreign vessels will provide advance notice and request permission for port entry, countries will conduct regular inspections in accordance with universal minimum standards, offending vessels will be denied use of port or certain port services and information sharing networks will be created.9
The Port State Measures Agreement is the “first ever global treaty focused specifically on the problem of IUU [illegal, unreported and unregulated] fishing,” 10 and is the culmination of a progression of measures taken by the international community to address the problem. Such measures include:
The Port State Measures Agreement will enter into force 30 days after 25 states and regional economic integration organizations have ratified, accepted, approved or acceded to it (article 29). In August 2014, the FAO reported that 11 states and regional economic integration organizations had done so.11
Bill S-3 has three interrelated purposes:
Bill S-3 provides a regulatory power for authorizing (including by means of licences or permits) foreign fishing vessels ordered to port by their flag state12 to enter Canadian fisheries waters for any purpose related to verifying compliance with:
(Collectively, these are “non-Canadian fisheries requirements.”)
Bill S-3 includes new administrative and enforcement provisions that apply to such a foreign fishing vessel, as follows:
Another new provision, distinct from new section 16.01 (described above), provides for forfeiture of any fish or marine plant that a protection officer has detained from a foreign fishing vessel pursuant to an international fisheries treaty or arrangement to which Canada is a party. A justice hearing the ex parte application for forfeiture must first be satisfied that the detention and proposed forfeiture are both consistent with the treaty or arrangement, and that the foreign fishing vessel’s flag state has not provided the minister, within the time period provided in the treaty or arrangement, with information required by the treaty or arrangement to prevent the forfeiture. Before making the order, the justice may require that notice of the application be given to any interested person in order to give that person the opportunity to make representations. Once forfeited, the fish or marine plant must be disposed of as the minister directs (clause 13, adding new section 16.3 to the Act).
In order to implement the Port State Measures Agreement, Bill S-3 adds to the Act significant new powers for the minister to share information with other countries, fisheries management organizations and international organizations. Specifically, the minister may disclose information about the following:
In addition, if another state takes a measure under the Port State Measures Agreement in respect of a Canadian fishing vessel, the minister may disclose to another country or organization any measure that is taken under the Canadian Fisheries Act in respect of that Canadian fishing vessel (clause 13, adding new section 16.5 to the Act).
Bill S-3 includes a new provision allowing for a justice, on ex parte application, to order anything seized under the Act to be sent to a foreign state that has requested that the thing be sent to it for the purpose of administering or enforcing its laws. The justice may require that the thing be brought before him or her, and may include in the order any appropriate terms and conditions, including in relation to the preservation and return to Canada of the thing or the protection of the interests of third parties. Before making the order, the justice may require that any interested party be given notice of the application in order to allow that person to make representations (clause 13, adding new section 16.7 to the Act).
Under related amendments, an order that a seized item be sent to a foreign state takes precedence over legal obligations that would otherwise exist to return the item (or pay the proceeds from its sale) to the person from whom it was seized (clause 8, adding new subsection 12(2) to the Act; clause 10, amending subsection 16(1); and clause 11, adding new subsection 16.01(5) to the Act).
Bill S-3 clarifies the existing definition of “fishing vessel” and expands the definition to include a vessel that is used in “transhipping[14] fish, or marine plants, that have not been previously landed.” According to the government backgrounder, this amendment is being made to “close a potential loophole to ensure that IUU fishing activities are not displaced from fishing vessels to other types of vessels.” 15
Bill S-3 also revises some of the definitions set out in the Act to distinguish between the Fish Stocks Agreement, which the Act already implements, and the new Port State Measures Agreement. It clarifies and expands the existing definition of “fish,” which includes shellfish, crustaceans and marine animals, to include any part or derivative of a fish, as well as eggs, sperm, spawn, larvae, spat or juvenile stages of fish. In addition, new terms “fisheries management organization” and “flag state” are defined (clause 2, amending subsection 2(1) of the Act).
Bill S-3 adds to the Act prohibitions against importing any illegally acquired fish or marine plant, and, in connection with such an importation, transporting, selling, distributing, purchasing or accepting it. These prohibitions apply when the person taking any of these actions knows that the fish or marine plant was taken, harvested, possessed, transported, distributed or sold contrary to:
The House of Commons Standing Committee on Fisheries and Oceans amended the bill to include an additional prohibition against importing any fish or marine plant that is not accompanied by the documentation required by regulation (clause 4, adding new section 5.6(3) to the Act). A related regulatory power was also added (clause 5, adding new section 6(d.1) to the Act).
In support of the new prohibitions:
Many of the amendments that Bill S-3 makes to the Act are for the purposes of clarifying and expanding upon powers with respect to the administration or enforcement of the Act.
Bill S-3 amends existing provisions to clarify that international16 conservation, management and enforcement measures may be incorporated by reference, or carried out and given effect to, in Canadian regulations “as of a fixed date or as they are amended from time to time” (subclause 5(3), amending subparagraph 6(e)(i) of the Act; and subclause 5(6), amending subparagraph 6(f)(i) of the Act).
Currently, section 7.1 of the Act provides that a justice of the peace may issue a warrant authorizing a protection officer to enter and search a place for fish or other evidence of a contravention of the Act. Bill S-3 amends that provision to replace “justice of the peace” with a “justice, as defined in section 2 of the Criminal Code.” Section 2 of the Criminal Code states that “justice” means “a justice of the peace or a provincial court judge, and includes two or more justices where two or more justices are, by law, required to act or, by law, act or have jurisdiction” (clause 6, amending section 7.1 of the Act and renumbering it section 7.6).
As discussed elsewhere in this legislative summary, Bill S-3 also adds a number of new provisions under which a justice, as defined in section 2 of the Criminal Code, may hear applications, including for a search warrant, a warrant authorizing a protection officer to seize something, or a forfeiture order.
Currently, paragraph 7(a) of the Act allows a protection officer to board and inspect any fishing vessel found within Canadian fisheries waters or the NAFO Regulatory Area for the purpose of ensuring compliance with the Act. Bill S-3 substantially reproduces that paragraph (clause 6, replacing paragraph 7(a) of the Act with subsection 7.1(2)) and adds new sections providing details about the powers a protection officer has to enter and inspect a place, as described below.
Under the new sections, a place that may be inspected (and under other provisions, searched) is not limited to a fishing vessel found within Canadian fisheries waters or the NAFO Regulatory Area, but may include any other vehicle, including a vessel or aircraft, a container and a dwelling place (clause 6, adding new sections 7 and 7.4 to the Act).
Clause 6 expands the power to enter and inspect a place, as follows:
With respect to a protection officer’s power to search a vessel or other place when authorized by a warrant, Bill S-3 substantially reproduces existing provisions of the Act (namely subsections 7.1(1) and 7.1(2)) in new subsections 7.6(1) and 7.6(2) of the Act, and expands the power to provide for a search, with a warrant, of a foreign fishing vessel ordered to port by the flag state, as discussed in section 2.1.1 of this legislative summary (clause 6, adding new subsections 7.6(3) and 7.6(4) to the Act).
Bill S-3 clarifies and expands upon a protection officer’s existing powers to seize, detain and return a fishing vessel or related goods.
Related to the amendments expanding a protection officer’s power to enter and inspect a “place,” as opposed to a fishing vessel, Bill S-3 also expands a protection officer’s power to seize goods “in any place,” not just aboard a fishing vessel, if the protection officer believes on reasonable grounds that an offence under the Act has been committed (subclause 7(1), amending paragraph 9(b) of the Act).
When a protection officer or other person has custody of any fish, marine plant or other thing that has been seized and is perishable, section 11 of the Act currently allows for that person to sell it. Bill S-3 expands that power, allowing the person who has custody of the thing that is perishable “or susceptible to deterioration” to “dispose of it in any manner that he or she considers appropriate” (clause 8, amending section 11 of the Act).
Under section 12 of the Act, a seized vessel or goods, or payment of the proceeds realized from a sale of a seized vessel or goods, are to be returned if the minister decides not to institute a prosecution; they are to be returned in any event at the end of three months, unless proceedings are instituted before that time. Bill S-3 allows for the period of detention to be extended by court order if the minister requests it before the end of the period of detention and the court is satisfied that such an extension is justified in the circumstances (clause 8, adding new subsection 12(3)).
The bill also provides for returning, or extending the period of detention of, any fish, marine plant or other thing seized from a foreign fishing vessel, as discussed in section 2.1.1 of this legislative summary (clause 8, adding new section 12.1).
Under section 14 of the Act, a court or judge that convicts a person or fishing vessel of an offence under the Act may order that a fishing vessel seized in relation to the offence and/or any of the goods aboard the fishing vessel (or their proceeds of sale) be forfeited. Bill S-3 expands this power:
Bill S-3 includes a new provision stating that, if a person is convicted of an offence under the Act and as a result of the offence, a financial benefit had accrued to the person, the court may, despite maximum fine amounts set under the Act, order the person to pay a fine in an amount estimated to equal the benefit (clause 16, adding new section 18.04 to the Act).
Bill S-3 makes a number of insubstantial amendments to better align the English and French versions of the Act, modernize the existing language, or update a provision number that is changed by Bill S-3 (subclause 7(2), amending paragraph 9(c); clause 8, replacing section 12 with subsection 12(1) and amending section 13; clause 10, amending subsection 16(1); clause 13, amending section 16.2; subclause 15(2), amending subsection 18.01(2); and clause 18, amending section 18.2).
A number of clauses incorporate the new definition of “Fish Stocks Agreement” or “party to the Fish Stocks Agreement” into the Act (to distinguish it from the Port State Measures Agreement) without changing the substance of the existing provisions (clause 3, amending section 5.3; subclause 5(3), amending paragraph 6(e); subclause 5(4), amending subparagraphs 6(e)(iii) and 6(e)(iv); subclause 5(5), amending subparagraphs 6(e)(vi) and 6(e)(vii); clause 6, replacing section 7.01 with new section 7.5; clause 12, amending section 16.1; clause 13, amending section 16.2; clause 14, amending paragraph 17(2)(a); subsclause 15(1), amending subsection 18.01(1); clause 16, amending section 18.02; and clause 17, amending paragraph 18.1(a.1)).
Bill S-3 comes into force on a day to be fixed by order of the Governor in Council (clause 19).
According to Fisheries and Oceans Canada,
IUU fishing is a global problem that undercuts responsible fishing activities and has adverse consequences on food security, safety at sea, marine environmental protection and stability of prices in some key markets. A 2008 study estimated that the global economic loss due to IUU fishing ranges from US$10-23 billion annually, in addition to potential effects on marine ecosystems and fish stocks. Since approximately 85% of fish caught in Canadian waters are exported, an industry worth more than $3 billion annually, Canadian fish harvesters can be susceptible to depletion of stocks from overfishing, unfair competition with illegal fish products as well as price fluctuations in some markets created by the unpredictable supply of IUU fish products in foreign markets.17
Fisheries and Oceans Canada maintains that implementing and strengthening port state measures is “cost-effective in preventing, deterring, and eliminating IUU fishing activities around the world.” 18 It cites, as an example, “several IUU vessels fishing in the area regulated by the North-East Atlantic Fisheries Commission [that] were decommissioned because they were consistently denied port access by Commission members.” 19
In its Port State Performance report published in 2010, the Pew Environment Group, one of the few public voices on the issue, consolidated six years of movement data on IUU-listed vessels and concluded at that time that, “the system of port State measures lacks transparency, accountability and global reach, and is thus failing to close loopholes exploited by IUU operators and to keep IUU fish out of ports.” 20 In a brief on the topic published in June 2013, the Pew Charitable Trusts opined that the Port State Measures Agreement, once it takes effect, could “help reverse years of rampant and widespread disregard for fisheries laws and policies."21
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
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