EXTRA Vol. 138, No. 6

Canada Gazette

Part II

Registration
SOR/2004-110 4 May, 2004

COASTAL FISHERIES PROTECTION ACT

P.C. 2004-567 4 May, 2004

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to section 6 (see footnote a) of the Coastal Fisheries Protection Act, hereby makes the annexed Regulations Amending the Coastal Fisheries Protection Regulations.

REGULATIONS AMENDING THE COASTAL FISHERIES PROTECTION REGULATIONS

AMENDMENTS

1. (1) The definition "NAFO Measures" in section 2 of the Coastal Fisheries Protection Regulations (see footnote 1) is replaced by the following:

"NAFO Measures" means the Conservation and Enforcement Measures adopted by NAFO, as amended from time to time; (mesures de l'OPAN)

(2) The definition "Loi" in section 2 of the French version of the Regulations is replaced by the following:

« Loi » La Loi sur la protection des pêches côtières. (Act)

(3) Section 2 of the Regulations is amended by adding the following in alphabetical order:

"Division 3NO" means Division 3NO as described in section 3 of note B of Schedule III to the Atlantic Fishery Regulations, 1985; (division 3NO)

2. The Regulations are amended by adding the following after section 18:

18.1 When a protection officer on board an inspection vessel intends to board a fishing vessel of a participating state, the signal to be used by the inspection vessel is Signal SQ 3.

3. Sections 25 and 26 of the Regulations are replaced by the following:

25. A provision of these Regulations that is set out in column 1 of an item of the table to this section does not apply in respect of a fishing vessel of a participating state that, by virtue of Article XII of the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, is not bound by the provision of the NAFO Measures that is set out in column 2.

TABLE

26. Every fishing vessel of a participating state shall comply with the provision of the NAFO Measures that are set out in the table to this section, except those to which, by virtue of Article XII of the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, the participating state is not bound.

TABLE

26.1 Every master of a fishing vessel of a participating state shall not engage in a directed fishery within the meaning of paragraph 1 of Article 9 of the NAFO Measures for species for which a catch limit applies.

4. Section 27 of the Regulations is replaced by the following:

27. (1) Where in any calendar year a participating state notifies the Executive Secretary of NAFO of the date that it will close its fishery for a fish stock allocated to that state for that calendar year, no fishing vessel of that state shall, in any part of that calendar year after that date, engage in a directed fishery for fish of that stock.

(2) Where in any calendar year a participating state closes its fishery in shrimp in Division 3M, as defined in Article 5 of the NAFO Measures, because it has exhausted its fishing days under that Article, no fishing vessel of that state shall, in any part of that calendar year after that date, engage in a directed fishery for shrimp in Division 3M.

5. (1) Subsections 28(1) and (2) of the Regulations are replaced by the following:

28. (1) Subject to subsection (2), no fishing vessel of a participating state that has not been allocated a quota of a particular stock set out in Annex I.A of the NAFO Measures shall fish for fish of that stock.

(2) Subject to subsection (3), a fishing vessel of a participating state that is a contracting party to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries and that has not been allocated a quota of a particular stock set out in Annex I.A of the NAFO Measures may fish for fish of that stock if

(a) a quota for that stock has been allocated to "Others" in that Annex and the participating state has notified the Executive Secretary of NAFO that its vessels intend to fish for that stock;

(b) the vessel is fishing, wholly or partly, a quota or shrimp fishing day allocated to another contracting party in accordance with

(i) a transfer of the quota or shrimp fishing day to the participating state that has been authorized under the relevant NAFO process, or
(ii) a chartering arrangement that meets the requirements of Article 14 of the NAFO Measures; or

(c) the participating state is not bound by the quota set out in that Annex allocated for that stock by virtue of Article XII of that Convention.

(2) Subsection 28(3) of the French version of the Regulations is replaced by the following:

(3) Il est interdit au bateau de pêche visé au paragraphe (2) de pêcher le poisson d'un stock pour lequel un contingent a été attribué à " Others " après le septième jour suivant celui où le secrétaire général de l'OPAN a avisé l'État assujetti à l'accord que le contingent a été atteint.

6. The Regulations are amended by adding the following after section 28:

28.1 No fishing vessel of a participating state shall fish in the NAFO Regulatory Area for any stock set out in Annex II of the NAFO Measures unless it has a valid authorization to do so issued by the participating state.

7. (1) Paragraph 29(a) of the Regulations is replaced by the following:

(a) maintain an accurate fishing logbook, in the manner specified in paragraphs 2 and 3 of Article 19 of the NAFO Measures; and

(2) Subparagraph 29(b)(i) of the Regulations is replaced by the following:

(i) maintain an accurate production logbook, in accordance with paragraph 4 of Article 19 of the NAFO Measures, or

8. Section 31 of the Regulations is replaced by the following:

31. (1) No fishing vessel of a participating state shall fish for shrimp in Division 3NO.

(2) No fishing vessel of a participating state shall fish for shrimp in Division 3L as defined in Article 6 of the NAFO Measures, unless the fishing takes place both

(a) in the area in which fishing is permitted under paragraph 2 of Article 12 of the NAFO Measures; and

(b) at a time when fishing is not prohibited by paragraph 1 of Article 12 of the NAFO Measures.

31.1 No fishing vessel of a participating state shall fish for Atlantic cod or witch flounder in Division 3L.

9. (1) Section 32 of the Regulations is renumbered as subsection 32(1).

(2) Paragraphs 32(1)(a) to (c) of the Regulations are replaced by the following:

(a) fish using a net that has meshes that do not meet the requirements of paragraph 6a of Annex XIV of the NAFO Measures;

(b) except in the circumstances set out in paragraphs 3 and 4 of Article 10 of the NAFO Measures, when fishing for a particular species of fish, have on board a net with a mesh size smaller than that authorized for that species under paragraph 1 of that Article; or

(c) except in the circumstances set out in paragraph 3 of Article 10 of the NAFO Measures, fish for a species of fish set out in paragraph 1 of that Article using a net having, in any part, meshes of a size less than that specified for that species in that paragraph 1, as measured wet after use by inserting into the meshes an appropriate gauge, described in Annex XIV of the NAFO Measures.

(3) Section 32 of the Regulations is amended by adding the following after subsection (1):

(2) If, by virtue of Article XII of the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, a participating state is not bound by the minimum mesh size requirement set out in paragraph 1 of Article 10 of the NAFO Measures for a particular species of fish, paragraphs (1)(b) and (c) of this section do not apply to a fishing vessel of that participating state when fishing for that species of fish.

10. Section 33 of the Regulations is renumbered as subsection 33(1) and is amended by adding the following:

(2) Subsection (1) does not apply where the vessel has attached a device described in Annex XV of the NAFO Measures to the upper side of the codend, provided that the device is attached in such a manner that it does not obstruct the meshes of the codend, including any extension used to lengthen that codend.

11. Section 34 of the Regulations is replaced by the following:

34. Every fishing vessel of a participating state shall comply with the catch communication requirements set out in Article 22 of the NAFO Measures.

12. Section 36 of the Regulations is repealed.

13. The Regulations are amended by adding the following after section 37:

37.1 When an inspection vessel sends Signal SQ 3 to a fishing vessel of a participating state that has begun or is about to begin hauling its nets, the fishing vessel shall ensure that the nets are not hauled for a period of at least 30 minutes after the signal has been sent.

14. Section 40 of the Regulations is replaced by the following:

40. No fishing vessel of a participating state that is fishing in the waters referred to in subsection 39(1) shall have on board a bluefin tuna that is less than 3.2 kg in weight.

15. Schedule IV to the Regulations is replaced by the following:

SCHEDULE IV
(Section 22)

COMING INTO FORCE

16. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

These amendments to the Coastal Fisheries Protection Regulations update the regulatory provisions that enable Canada 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 (UNFA or the Agreement), ratified by Canada on August 3, 1999. The Coastal Fisheries Protection Act (Act) provides for the making of regulations for the implementation of the Agreement.

The provisions of the Act that entered into force when the Agreement entered into force on December 11, 2001 provide statutory authority for Canadian protection officers to board and inspect fishing vessels of States that are party to UNFA. These provisions include procedures consistent with UNFA to enforce conservation and management measures taken by regional fisheries management organizations to which Canada is a party and which regulate straddling or highly migratory fish stocks. These currently include the Northwest Atlantic Fisheries Organization (NAFO) and the International Commission for the Conservation of Atlantic Tunas (ICCAT).

Since the enabling provisions were originally enacted in 1999, the Conservation and Enforcement Measures of the NAFO (NAFO Measures) have been amended in 2000, 2002 and 2003. Key changes include instituting minimum mesh size for nets used in skate fisheries, requiring vessels fishing in the NAFO Regulatory Area to be authorized by their flag state and a new definition of "directed fishery". As well, the number of parties to UNFA has increased, most recently with the ratifications of the European Union and its 15 member states. Denmark and France have also ratified for Greenland and the Faroe Islands, and for Saint-Pierre and Miquelon respectively. Further, Bulgaria, Poland, Estonia, Latvia and Lithuania will be ratifying UNFA as part of their accession to the European Union; for the latter four, accession will occur on May 1, 2004. Amendments to the Regulations are required to reflect both the changes to NAFO Measures and increased UNFA membership.

The Agreement is central both to the Government's overall commitment to achieving the sustainability of global fish stocks and to the particular need to address foreign overfishing on the Grand Banks of Newfoundland and Labrador, outside Canada's 200-mile limit. It provides strong enforcement tools, such as boarding and inspection, to verify compliance with conservation and management rules established by regional fisheries management organizations, such as NAFO, and in certain circumstances, the ability to bring the vessels to port for further investigation and follow up action by the flag state. The Agreement also enables parties to take disputes before an international tribunal for a binding resolution.

Alternatives

The Act requires that regulations be made to implement the compliance and enforcement measures of international treaties and arrangements. There is no alternative to the enactment of these Regulations.

Benefits and Costs

The amendments to these Regulations will allow Canada to apply the enforcement measures set out in the Agreement to updated NAFO Measures vis a vis all UNFA parties. Canadian fisheries protection officers already conduct boarding and inspections in the NAFO Regulatory Area, in their capacity as NAFO Inspectors. Boarding and inspection pursuant to the UNFA procedures will provide new enforcement powers, such as the ability to bring vessels to port when flag states do not immediately investigate and follow-up on serious violations of NAFO Measures. Improved compliance will aid in achieving sustainable fish stocks, which will, in turn, benefit Canadians who fish for stocks that straddle Canada's 200-mile limit or which migrate in and out of Canadian waters.

Additional costs may be incurred as a result of increased enforcement activities or if foreign vessels are escorted to port.

Consultation

The Canadian fishing industry, provincial governments and various non-government organizations (NGOs), including the Fisheries Council of Canada, Greenpeace and the World Wildlife Fund (Canada), actively participated in the negotiation of the Agreement. The key states and entities fishing in the NAFO Regulatory Area are aware of and have agreed to the fishing rules referenced in these Regulations and are also in agreement with the provisions of UNFA, as expressed by their ratification of the Agreement. Every year, the Canadian fishing industry and provincial governments actively participate in developing Canada's position in negotiations in regional fisheries management organizations, such as NAFO and ICCAT. These stakeholders support Canada's initiatives to combat foreign overfishing in the NAFO Regulatory Area. In each of NAFO and ICCAT, two industry representatives serve as Canadian Commissioners. The House of Commons Standing Committee on Fisheries and Oceans (SCOFO), the Senate Standing Committee on Fisheries and Oceans and The Newfoundland and Labrador Royal Commission on Renewing and Strengthening our Place in Canada have all recommended using the Agreement as a tool in Canada's fight against foreign overfishing.

The Government of Newfoundland and Labrador and the province's fishing industry support these amendments.

Compliance and Enforcement

These Regulations are enforced by fisheries protection officers, and other peace officers as circumstances require, which may include fishery officers, members of the RCMP and persons authorized by the Governor in Council. The Act and regulations set out the compliance and enforcement measures that may be used by Canada. Boarding and inspection pursuant to the UNFA procedures provide enforcement powers, such as the ability to bring vessels to port when flag states do not immediately investigate and follow up on serious violations of NAFO Measures. Each flag state is responsible for following up on violations by its vessels and imposing sanctions under its judicial system. The Regulations allow for the use of these enforcement powers against an increased number of vessels of state parties listed in the Regulations.

Contacts

Nadia Bouffard
Director
Atlantic Division
International Affairs Directorate
Department of Fisheries and Oceans
200 Kent St., 13th Floor,
Ottawa, Ontario
K1A 0E6
Telephone: (613) 993-1860
FAX: (613) 993-5995
E-mail: bouffardn@dfo-mpo.gc.ca

Dave Luck
Policy Analyst
Legislation and Regulations
Department of Fisheries and Oceans
200 Kent St., 14th Floor,
Ottawa, Ontario
K1A 0E6
Telephone: (613) 990-0199
FAX: (613) 990-2811
E-mail: luckd@dfo-mpo.gc.ca

Footnote a

S.C. 1999, c. 19, s. 3

Footnote 1

C.R.C., c. 413

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with hypertext language (HTML). Its content is very similar except for the footnotes, the symbols and the tables.

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