Original Source: The Southern Gazette

OPINION: Northwest Atlantic Fisheries: The next great failure?

Former Department of Fisheries & Oceans Managament Personnell
The Southern Gazette
Wed, Sept 5

International management of the northwest Atlantic fisheries outside 200 miles has been a dismal failure!

The Northwest Atlantic Fisheries Organization, NAFO, created in the late 1970s to manage, outside 200 miles, the great fish stocks migrating across the line that separates Canada’s 200-mile zone from the high seas outside, known as the ‘straddling stocks’, has failed in its essential functions.

The stocks NAFO was created to conserve and protect from overfishing outside 200 miles are, for the most part, under moratoria, as they have been for many years, and show no signs of potential recovery.

It was against this background the Hon. Loyola Hearn, federal Minister of Fisheries and Oceans, promised, during the last federal election, to establish ‘Custodial Management’ outside 200 miles – meaning Canadian control, in some effective form, to stop foreign overfishing outside 200 miles and to start out on the road to stock recovery.

It’s safe to assume in making this promise, he was not fully aware of the difficulties under International Law of doing what he promised. In any event, once in office, he changed course and decided, instead, to launch an initiative labelled ‘NAFO Reform’, which was generally understood to mean an effort to change the NAFO Convention and NAFO practices in order to give the organization the strengths it needs to accomplish what it was originally created to do.

In the international negotiation that followed from this initiative, what has emerged is the draft of a new Convention that, far from strengthening NAFO, goes to considerable lengths to weaken it.

To strengthen NAFO there were two essential requirements for changes to the NAFO Convention.

One was the incorporation of an effective enforcement mechanism, one that did not depend solely on flag State action, to provide for removal from the fishery of vessels that break the NAFO conservation rules. The model for such a mechanism has already appeared in the United Nations Fish Agreement, which was driven to conclusion by Brian Tobin in 1995. And to which Canada, the EU and virtually all NAFO members are now party.

The other was either the removal of the NAFO Convention provision that allows, through its ‘objection procedure’, any NAFO member to ignore NAFO decisions, or at least, in the alternative, a judicial-type procedure through which unreasonable objections could be overruled early in the fishing season to which they applied.

The new draft NAFO Convention, as it is emerging, does neither. It does not provide for effective enforcement and, as regards the objection procedure; it provides only for a non-binding review system, one that cannot culminate in overruling an objection unless the objecting Party allows that to happen.

It has also left enforcement to a series of Enforcement Measures outside of the Convention that can be vitiated at will by any flag state at any time or amended at the will of the Parties.

While the new draft NAFO Convention does nothing to strengthen NAFO, it does quite a lot to weaken the NAFO Convention considerably from its present form.

One new provision, apparently assented to by Canadian negotiators, would allow NAFO management inside Canada’s 200-mile zone!

The Minister of Fisheries now says, in a recent letter to the ‘St. John’s Telegram’, he will not allow this, i.e., “Canada will only accept a NAFO Convention that clearly defines that the regulatory authority of NAFO is only on the high seas.”

Whether he holds to this latest position remains to be seen. If he does not, then instead of Canada establishing ‘custodial management’ beyond 200 miles as he promised during the election, Minister Hearn will have done the exact opposite – established a form of custodial management by NAFO and its 12 members within Canada’s 200-mile limit.

The other weakening element is a new provision which, in his letter, the Minister of Fisheries and Oceans supports, to change the voting system in NAFO from the simple majority which now applies in the existing Convention, to a two-thirds (2/3) majority system.

The reason he gives for supporting the 2/3 system, which is being demanded chiefly by the European Union, makes no sense, and has already been discredited by a legal opinion DFO has received stating DFO’s premise for supporting the 2/3 vote is based on a misunderstanding of how NAFO works.

What the 2/3 voting system would do is make it harder for Canada, and other conservation-minded members of NAFO, to succeed in getting NAFO decisions that will restrict catches severely when this is necessary for conservation, and any other NAFO decisions, including enforcement improvements, that will support conservation in any way.

The new NAFO, with a 2/3 voting rule, would be a weaker organization, one that favours compromises between the needs of conservation and the needs of the fishing fleets. This is what the future now seems to offer.