Registration
SOR/2008-38 February 14, 2008

FISHERIES ACT

Regulations Amending the Marine Mammal Regulations

P.C. 2008-2270 February 14, 2008

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to section 43 (see footnote a) of the Fisheries Act, hereby makes the annexed Regulations Amending the Marine Mammal Regulations.

REGULATIONS AMENDING THE MARINE MAMMAL REGULATIONS

AMENDMENTS

1. Paragraph 32(2)(d) of the Marine Mammal Regulations (see footnote 1) is amended by striking out the word “and” at the end of paragraph (c) and by replacing paragraph (d) with the following:

(d) whether the applicant has a stated aim of disrupting the seal fishery or has been convicted, in the five years preceding the application for the licence, of tagging, marking or moving a live seal, of approaching within one-half nautical mile of a person who is fishing for seals or of violating a condition of a seal fishery observation licence; and

(e) any other relevant information.

2. (1) Subsection 33(1) of the Regulations is replaced by the following:

33. (1) Subject to subsection (2), no person shall, except under the authority of a seal fishery observation licence issued by the Minister, approach within one-half nautical mile of a person who is fishing for seals.

(2) Paragraph 33(2)(e) of the Regulations is replaced by the following:

(e) to a person who resides on land within one-half nautical mile of a person who is fishing for seals.

COMING INTO FORCE

3. 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

The amendments to the Marine Mammal Regulations (MMR), made pursuant to the Fisheries Act, will clarify sections 32 and 33 regarding seal fishery observation licences.

Sections 32 and 33 of the MMR specify how a seal fishery observation licence is to be issued and to whom. These two sections identify which criteria the Minister of Fisheries and Oceans (Minister) has to take into account when issuing an observer licence and also identify the persons who are exempted from the requirement of possessing a licence to observe the seal fishery.

There are three main issues that will be resolved by these amendments:

1. Issuance of Seal Fishery Observation Licences

Section 32(2) establishes the considerations the Minister has to take into account when issuing observation licences. These criteria should not be considered as exhaustive, as the Minister should be able to take other relevant information (such as weather and ice conditions, or public safety) into account when determining whether the issuance of a seal fishery observation licence will cause disruption to a seal fishery. To clarify the intent of the Regulations, subsection 32(2) will be amended to reflect additional criteria. As well, it will be added to subsection 32(2)(d) that the observation licence holder must not have violated the conditions of a licence issued under subsection (1) in the last five years in order to obtain a license. The amendment will clarify the intent of the Regulations and the interpretation to be made of this section.

2. “On the Ice Fishing for Seals”

Based on the current wording of sections 32 and 33, a seal fishery observation licence is not required to observe sealing activity conducted off the ice (i.e. from a boat), resulting in an inability to enforce the conditions of a seal fishery observation licence in such circumstances. This has become increasingly problematic in recent years since there are fewer sealers using hakapiks or clubs on the ice and more sealers using rifles from their boat without stepping onto the ice due to poor ice conditions. As well, even when a seal fishery observation licence is issued, the wording of the Regulations does not allow Fishery Officers to enforce licence conditions if there is no sealer fishing on the ice at the moment the infraction is committed. The amendment will allow this problem to be solved by clarifying that seal harvesters do not have to be on the ice for the Regulations to apply.

3. Residency Exception

Finally, the third amendment will clarify the intent of the Regulations and the purpose of the exception in paragraph 33(2)(e) of the MMR. Currently, this exception excludes people who reside within a half nautical mile of a sealing activity from needing a seal fishery observation licence. Seal fishery observers have argued in a previous court case (The Queen v. Paul Watson; affirmed on other grounds, P.E.I.C.A., August 24, 2007) that they were living on their boat in order to benefit from this exception; the argument was accepted by the trial judge at that time. Even though the Department of Fisheries and Oceans (DFO) appealed the decision and succeeded in defeating this argument (R. v. Biroc), it would not be productive to see this argument made again in another case. DFO would rather clarify the interpretation to be made of the exception, which is that people who live in houses or land-based residences within one-half nautical mile of the sealing activity are exempted from having to obtain a seal fishery observer license.

Alternatives

In developing these regulatory amendments, three alternatives were evaluated. For the reasons presented, the regulatory amendments are considered to be the most effective and appropriate approach to achieve the stated objectives of clarifying and improving the enforceability of the Regulations.

Status quo

Maintaining the status quo would not allow the Minister or DFO to resolve the recurring problems resulting from the wording of the current Regulations. Amendments are required in order to allow enforcement of the Regulations as intended.

Voluntary Compliance

Voluntary compliance was considered and rejected because of the controversial aspect of the seal fishery. Animal welfare groups and international observers have opposed the Canadian seal hunt since the 1960’s and 1970’s. The goal of these amendments is to clarify the regulatory intent and to ensure that the Regulations are enforceable.

Regulatory Amendments

Amendment to the MMR is the chosen option. By amending sections 32 and 33 of the Marine Mammal Regulations, DFO will clarify the regulatory intent and be able to enforce the Regulations. Moreover, clarifying the intent will also reduce the potential lawsuits that could result from misinterpretation of the Regulations.

Benefits and c osts

The amendments to the Regulations will not cause any significant increases in costs to the Government, commercial and personal-use sealers, or observers. DFO expects a slight increase in applications for seal fishery observation licences, but does not expect the increase to be significant. This increase could be due to the fact that all observers, except when specifically exempted by subsection 33(2), will have to obtain an observer licence in order to comply with the Regulations. In fact, it is difficult to estimate how the interest for the changes will lead to increased observer licences requested. The change in government expenditure or revenue is expected to be trivial. Furthermore, any increases in licence processing costs may be offset with decreased costs elsewhere (e.g. safety monitoring and dispute resolution), as those observers formerly finding means to become exempt from licences will now become subject to the observer licence conditions designed to ensure safety and minimize disputes. There are no observer licence fee increases in these amendments (fee will remain at $25) and no changes to the way the MMR is enforced.

These amendments will be beneficial as they will clarify the regulatory intent and allow for better understanding of the Regulations. Furthermore, the amendments will reduce the risk of judicial review on these Regulations.

With these amendments, the Regulations will reflect the changing ice conditions and allow DFO to properly enforce the Regulations. Moreover, the current Regulations do not prevent an observer from approaching the vessels when no sealers are on the ice, which is dangerous especially where rifles are involved as bullets are known to ricochet unpredictably off water and ice. Amending the Regulations will therefore improve the safety of sealers and observers.

Consultation

Intention to amend the Regulations was posted on the departmental Web site on August 31, 2007 and people from organisations and from the general public were invited to comment. In order to ensure that major stakeholders noticed this posting, 70 letters were sent to sealers associations, the sealing and fishing industry and non-governmental organizations inviting them to comment on these intentions.

More than 68,000 comments were received by email or written submission during the comment period – August 31, 2007 to November 20, 2007 – 97% of the comments received were generated by letter campaigns. The other 3%, almost 200 hand-crafted comments, were variously supportive and unsupportive of the proposed changes. These came from major stakeholders, as well as general Canadian and international population.

While general opposition to the seal hunt was a frequent theme, comments directed at the proposed amendments revealed three common concerns, specifically:

1. Concerns that DFO wants to restrict the observation of the seal hunt.

The observers’ rights to express themselves are protected by paragraph 2(b) of the Charter, which protects freedom of expression. In regulating observation of the hunt, the Government of Canada must strike an appropriate balance between the observers’ constitutionally protected freedom of expression and the rights of sealers to legally pursue their livelihood without disruption. These amendments have nothing to do with increasing the distance required to be maintained between licenced observers and sealers. Observers have been and will continue to be welcome to observe the hunt.

2. Concerns that “other relevant considerations” which the Minister may take into account when issuing an observation licence are too vague and that this change will increase the power of the Minister.

The amendments will not increase the power of the Minister, since he is already required to take into account relevant considerations when exercising his discretion under section 32 to grant or refuse a seal fishery observation licence. The proposed amendments are meant to clarify that the list of considerations the Minister must take into account when issuing observer permits is not exhaustive and that the Minister has the discretion to take into account other relevant considerations, such as matters of public safety and weather and ice conditions.

3. Concerns that removing the wording “on the ice” will further restrict the observation of the hunt.

Because of changing ice conditions, in recent years there has been a considerable increase in the number of sealers hunting from vessels with rifles compared to the number of sealers hunting on the ice with clubs or hakapiks. Currently the Regulations state that “no person shall, except under the authority of a seal fishery observation licence issued by the Minister, approach within one-half nautical mile of a person who is on the ice fishing for seals.” The removal of the words “on the ice” recognizes the changing nature of the hunt and will ensure that the hunt can be conducted without disruption, whether it is conducted with clubs or hakapiks on the ice or with rifles from a vessel.

Results of pre-publication

The Regulations Amending the Marine Mammal Regulations were pre-published in the Canada Gazette, Part I on December 22, 2007. No further comments were received following the pre-publication of the Regulations.

Compliance and e nforcement

Compliance with the amended Regulations will be monitored through regular enforcement program in place which includes the deployment of DFO Fishery Officers on the ice by vessel patrol, aerial surveillance, dockside inspections of vessels at landing sites and inspections at buying and landing facilities.

Enforcement in cases of infractions will be handled by fishery officers through the normal enforcement and monitoring mechanisms that are available. In cases where there are infractions to the Regulations or to the licence conditions, actions taken can range from warnings to charges laid in court. Having these amendments in place will allow the Fishery Officers to enforce the Regulations regarding the observation licence even when the sealers are fishing from their boats. These changes will require for example that the licensed observers maintain the 10m distance from the sealing activity required through license conditions even when sealers are fishing with rifles from their boats. No additional resources will be required to enforce the revised provisions.

Contacts

Tom Fowler
Fisheries Resource Management Officer
Fisheries and Oceans Canada
200 Kent Street, 13th Floor
Ottawa, Ontario
K1A 0E6
Telephone: 613-990-0205
Fax: 613-954-1407

Rachelle Duval
Regulatory Analyst
Fisheries and Oceans Canada
200 Kent Street, 14th Floor
Ottawa, Ontario
K1A 0E6
Telephone: 613-990-1297
Fax: 613-990-0168

Footnote a
 S.C. 1991, c. 1, s. 12

Footnote 1
 SOR/93-56

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