ARCHIVED — Regulations Amending the Marine Mammal Regulations

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Vol. 143, No. 5 — March 4, 2009

Registration

SOR/2009-66 February 12, 2009

FISHERIES ACT

P.C. 2009-272 February 12, 2009

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 (see footnote b), hereby makes the annexed Regulations Amending the Marine Mammal Regulations.

REGULATIONS AMENDING THE MARINE MAMMAL REGULATIONS

AMENDMENTS

1. (1) The definition “blinking reflex test” in subsection 2(1) of the Marine Mammal Regulations (see footnote 1) is repealed.

(2) Subsection 2(1) of the Regulations is amended by adding the following in alphabetical order:

“crushed”, with respect to the cranium of a seal, means that both halves of the cranium have been broken so that neither half presents a solid structure when palpated; (écrasée)

“palpate” means to examine the right and left halves of the cranium by pressing it by hand from the top; (palpation)

2. Subsections 28(2) to (4) of the Regulations are replaced by the following:

(1.1) No person shall use a club or hakapik to strike a seal older than one year unless the seal has been shot with a firearm.

(2) Every person who strikes a seal with a club or hakapik shall strike the seal on the top of the cranium until it has been crushed and shall immediately palpate the cranium to confirm that it has been crushed.

(3) If a firearm is used to fish for a seal, the person who shoots the seal or retrieves it shall palpate the cranium as soon as possible after it is shot to confirm that the cranium has been crushed.

(4) Every person who palpates the cranium of a seal and determines that the cranium is not crushed shall immediately strike the seal with a club or hakapik on the top of its cranium until the cranium has been crushed.

3. Section 29 of the Regulations is replaced by the following:

29. No person shall skin a seal until the cranium has been crushed and at least one minute has elapsed after the two axillary arteries of the seal located beneath its front flippers have been severed to bleed the seal.

4. The table to paragraph 37(d) of the Regulations is replaced by the following:

Point

North Latitude

West Longitude

1.

47°27′12″

61°49′18″

2.

47°28′03″

61°47′42″

3.

47°27′36″

61°47′06″

4.

47°26′36″

61°48′42″

5. The portion of item 6 of Schedule V to the French version of the Regulations in column I is replaced by the following:

Article

Colonne I
Espèce de phoques

6.

Éléphant de mer

COMING INTO FORCE

6. 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.)

Executive summary

Issue: The sealing method in the current Regulations is being updated in accordance with the humane killing recommendations of the Independent Veterinarians’ Working Group (IVWG).

Description: The Regulations Amending the Marine Mammal Regulations (the Regulations) will modify the three-step process (stunning, checking, and bleeding the seals) to prohibit the use of a hakapik or club for seals over one year old, to require sealers to verify irreversible unconsciousness or death only through palpation of the skull and to require the animal to be bled for one minute prior to skinning.

Cost-benefit statement: Implementing the Regulations will help to maintain market access for an industry with a present export value of $13M. The costs of implementation are estimated to be between $1.8M to $3.6M. These costs are associated with increased costs to sealers (fuel, crew wages, vessel maintenance, failure to attain allowable catch, lost opportunity to engage in other fisheries/employment), to fisheries management and enforcement (vessel time, aircraft, observer deployment, dockside monitoring) and to Coast Guard (maintaining dedicated search and rescue capability).

The Regulations make it possible to maintain an important economic activity for the thousands of coastal Canadians who depend on it for income and food security. It also aligns itself with the latest veterinary advice and recommendations, reports of the European Union (EU), and concerns from animal welfare groups.

Business and consumer impacts: The majority of seal products are placed on the fur market, where they compete against products derived from other fur-bearing mammals, especially mink. Maintaining a market for seal fur is not expected to be opposed by Canadian fur producers as they have been fully engaged in seal marketing, they support the Government’s effort in this regard, and view it as advancing their general interest.

Impacts to consumers of seal products will be positive due to improved product quality and availability in markets that might otherwise be closed. Also, a healthy market will promote product diversification. Finally, consumers demand products that are sourced in a responsible manner, including animal welfare considerations.

Issue

Seals, like all other marine mammals, are included in the definition of fish in the Fisheries Act (the Act). The seal hunt is a practice regulated by the Marine Mammals Regulations under the Act. The definition of fishing (“fishing” means fishing for, catching or attempting to catch fish by any method) includes the activity of hunting for a seal.

The Marine Mammal Regulations (MMR) establishes the methods and tools that are to be used for the hunt. Fisheries and Oceans Canada sought veterinary advice through the Independent Veterinarians’ Working Group (IVWG) in order to improve the hunt. These amendments to the MMR complement changes to license conditions made in 2008 to implement the IVWG recommendations presented in their 2005 report.

The hunting of seals in Canada is at the center of a domestic and international debate on animal welfare. A number of prominent non-governmental organizations (NGOs) are actively campaigning to end the hunt, and European countries (Belgium and the Netherlands) have recently established national legislation to ban the import of seal products. Similar legislation for a European Union (EU)-wide ban is being reviewed by the European Parliament. On July 23, 2008, the EU tabled its proposal to ban trade on seal products (import, export and transshipment), allowing for a derogation for products from countries with legislative or other requirements (regulations and/or license conditions) that ensure that seals are killed and skinned without causing undue suffering.

Objectives

These amendments to the MMR aim at further implementation of the IVWG recommendations presented in their 2005 report. As new information becomes available, the Government of Canada has updated the humane killing methods for the seal hunt.

Canada made commitments internationally (e.g. to European Food Safety Authority [EFSA] in November 2007) and domestically (e.g. Standing Committee on Fisheries and Oceans, NGOs and Canadians) to implement IVWG recommendations. Specific amendments will ensure that the regulatory framework is based on the latest scientific and veterinary advice, particularly the IVWG and the EFSA reports.

Another objective is to maintain Canada’s good standing internationally as a country that respects wildlife within its jurisdiction. A third objective is to support an economic activity and a way of life for thousands of coastal Canadians who depend on the seal hunt for income and food security.

Description

The amendments improve clarity around the method of killing the seals, which consists of a three-step process of stunning, checking and bleeding of the seals. For stunning, the Regulations specify that the hakapik and club will not be allowed as primary striking tools on seals over one year old and it will specify the manner in which the animal must be struck (e.g. when using a hakapik or club, a sealer shall strike the seal on the top of the cranium).

For checking, three changes are made. The requirement to check to confirm death is replaced by a requirement to palpate the cranium to confirm it has been crushed, in accordance with the Regulations, which will confirm irreversible unconsciousness. This new requirement follows the latest veterinarian advice which indicates that the seal might not be dead after proper stunning. Currently, the sealer is required to perform either a blinking reflex test (e.g. verifying if the animal eyes react to stimulus) or a palpation of the skull. Since the veterinarians advise that the blinking reflex test is not the most reliable one to verify irreversible unconsciousness or death, the palpation of the skull is the only test required. The veterinarians have decided that palpation has a better diagnostic value, especially when performed by a non-specialist. The Regulations define what is meant by the terms “crushed skull” and “palpate” to ensure a common understanding of these terms.

For bleeding, a new requirement is added in order to specify the technique that is to be used (e.g. severing the two axillary arteries). The amendments replace the blinking reflex test currently performed prior to skinning by a requirement to bleed the animal for at least one minute, thus ensuring that the animal is dead.

Regulatory and non-regulatory options considered

A blend of regulatory and non-regulatory approaches is planned to reinforce the humaneness of the hunt (e.g. development of a management plan, training and voluntary compliance).

Government officials work closely with sealers in the development of management plans and associated sealing plans. Allowable catches, allocations to fleets or regions and mutually agreed management measures, including humane hunting practices, are agreed upon and documented to ensure the hunt is conducted according to objectives and principles set out in the plan. There are ongoing annual consultation sessions throughout the areas where sealing takes place to ensure participation of sealers in the management of the hunt. This has led to significant education and awareness among sealers regarding the requirements for humane hunting and has better informed government officials about the realities of seal hunting.

Training is an important component. A two-year apprenticeship is already in place and will remain a key component to the training program. Federal and provincial representatives as well as representatives of training and certification bodies are partnering with sealers, veterinarians and others to develop training standards and a training program for 2009 and beyond.

Voluntary compliance is critical and is intended to complement regulatory enforcement as a means to ensure widespread adherence to the new Regulations. A compliance strategy is being developed with close linkages to the training program. The Department is enhancing its ability to monitor/report on compliance with the sealing process and is establishing a compliance rate as a baseline. All hunting activities are observed by enforcement officials, contracted observers, veterinarians, or licensed observers and will be documented and publicly reported. Government enforcement resources will be coordinated to support voluntary compliance using new surveillance technologies such as the rental of camera remote surveillance equipment mounted on helicopters.

Benefits and costs

Using Statistics Canada data and a market analysis provided by the Fur Institute of Canada, the annual value of total Canadian seal hunt exports is estimated at $13M. Anecdotal claims state that the value is larger, but these claims could not be independently verified. Regardless, these estimates are not value-added numbers.

Costs

The cost to the federal government of the amendments is estimated to range from $1.8M to $3.6M in the first year and from $1.6M to $2M for every subsequent year. Note that due to the lack of available data, assumptions were used to arrive at the estimated cost. The increased governmental costs are due for the most part to enforcement measures, training and communication. Some of the enforcement costs were increased to provide for greater confidence in the estimated cost to take into consideration numerous unknown cost variables.

The cost to sealers will be directly affected by the potential prolonged period over which they will be hunting for seals. In fact, the amendments may require the sealers to go through more steps, thus reducing the speed of the hunt and extending the time needed to achieve their quota. A longer hunting period translates into increased costs in fuel, crew wages, vessel maintenance and failure to attain allowable catch, and/or lost opportunity to engage in other fisheries/employment.

As a fraction of the 2007 value of seal exports, the estimated costs of the Regulations range from 14% to 27%. The net benefits, however, range from 23% to 36%.

The share of direct exports of seal products from Canada to other countries has been derived from both Statistics Canada data and Eurostats data. The major countries Canada exports to, by percentage value, are Norway (54%), Finland (9%), Greenland (8%), the EU (12%) and China (6%). An EU ban on Canadian seal products imports is likely to affect 100% of the exportation value to Finland, Greenland and the EU. It is also estimated that 25% of the export value to Norway would be negatively affected. No implications for exports to China or other countries are anticipated.

Benefits

The estimated net benefit to maintain Canadian exports to the EU would range between $3M and $4.7M, which is calculated by subtracting the total cost range of the Regulations from the estimated loss to the seal hunt industry from the potential EU ban.

Sealing can provide as much as 35% of a sealer’s annual income. Remote fishing communities offer few other employment opportunities. Many sealers might be forced to leave their homes if unable to hunt seals.

The implementation of the three-step sealing process will benefit the general Canadian public since it will help maintain Canada’s international reputation as a country that sustains a “humane hunt.” The amendments improve the sealing techniques and make it possible to pursue an important economic activity for coastal people of Canada. They are also aligned with the latest veterinary advice and recommendations, requests of the EU and concerns from animal welfare groups.

The amendments prescribe a more humane hunting method which will eliminate unnecessary pain and suffering and will provide sealers with a reliable method for checking death.

Consultation

Consultation on this proposal began in 2007. At that time, the Department informed stakeholders of its intention to implement the recommendation by the IVWG.

The Department of Fisheries and Oceans (DFO) also engaged key stakeholders at two meetings of a panel of expert sealers and Canadian veterinarians (February 22 and May 1 to 2, 2008). Comments received were based on a list of considerations and questions distributed during the months of March and April 2008, to twelve Canadian NGOs, three veterinarians, and two scientists.

Finally, a notice to review the Regulations was posted on the DFO Web site on November 14, 2008 (www.dfo-mpo.gc.ca/ communic/fish_man/consultations/MMR2-RMM2_e.htm). People from organizations 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, NGOs and others inviting them to comment on these intentions.

While general opposition to the seal hunt was a frequent theme of the online consultation results, comments directed at the proposed amendments were mostly from concerned stakeholders and revealed a number of issues which generally fall under the following two concerns:

1. Concern that the proposed amendments could jeopardize the safety of sealers.

2. Concern that the proposed amendments would slow down the hunt to the point where it will not be economically viable.

The expert panel discussion supports the regulatory proposal but has concerns related to the implementation details, such as making the timing and sequencing of the sealing process a condition to the license.

Following the prepublication 30 day period, a total of 5 detailed comments were received. One was from a sealer association, another from a veterinarian association and 3 from environmental non-governmental organizations (ENGOs).

One main remark found in the comments concerned the lack of clarity in the “crushed” English definition. Although the definition did imply that both sides of the cranium must be crushed, the original wording could lead to confusion. It was subsequently changed to reach the desired result while being easier to understand for the stakeholders and the general public.

Another comment that induced a small change in the regulation was the lack of consistency between the use of the word “skull” and “cranium.” The focus in the regulatory amendments being on the cranium, this word was used in all instances where “skull” could be read.

There were some suggestions that, in the Regulations, the expression “as soon as possible” be replaced with the word “immediately.” This could not be done at this time. The fact that the sealers work often as a team address the apprehended delay expressed in some comments. In addition, to use “immediately” cannot be done as a safety consideration for the sealers, as it does not allow time for cessation of the swimmer’s reflex. A more detailed summary of the comments received and answers to them can be found on DFO’s Web site (http://www.dfo-mpo.gc.ca/seal-phoque/).

Lastly, DFO also implements specific licence conditions which address the more fundamental issue of the timing and sequencing of the 3 steps method.

The license conditions enunciate specific requirements depending on the hunting method and add the term “directed movement” to the definitions. “Directed movement” means the coordinated movement of head and/or flippers, including such activities as head movement and escape behaviour. It is also characterized by any immediate movement that reflects an instantaneous response to external stimuli.

When a club or hakapik is used to strike a seal, the person that strikes shall immediately palpate the cranium and confirm irreversible unconsciousness. The person then bleeds it as soon as possible by severing its two axillary arteries. In the situation where a person takes a seal that has not been bled on board a vessel, the person shall ensure that it is bled as soon as possible.

When a firearm is used to shoot a seal, the person who shoots shall observe the seal for directed movement and if such movement is observed shall immediately re-shoot it until no directed movement is displayed before shooting another seal. If the sealer disembarks onto the ice to retrieve a seal that has been shot, he shall: proceed to the seal without delay; palpate the cranium immediately upon reaching it and bleed the seal as soon as possible. If a person takes a seal that has not been bled on board a vessel, the person shall ensure that it is bled as soon as possible.

In the case where a person without disembarking onto the ice prior to retrieving a seal whose cranium has not been palpated, the person shall immediately before retrieving it, observe the seal for directed movement. Where such movement is observed, the person shall immediately re-shoot the seal before retrieving it. After retrieving it, the person shall palpate the cranium immediately and shall ensure that it is bled as soon as possible following retrieval.

Implementation, enforcement and service standards

Implementation of the Regulations and associated conditions of license will require very specific practices to be carried out by the sealers. This in turn requires training for thousands of sealers. For 2009, a training program is being implemented beginning with workshops, development of training tools, and the delivery of a series of pilot training sessions.

To enhance enforcement, DFO plans to implement remote camera monitoring of the 2009 seal hunt. The system requires reliable remote stable imaging using a helicopter-mounted camera. The leasing of the equipment and the helicopter, installation, and training is expensive but is expected to result in a highly enhanced capability for remote surveillance. Existing surveillance equipment will also require upgrading. Enforcement will be supported by a dedicated Coast Guard icebreaker presence.

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

Eve Ste-Marie
Regulatory Analyst
Fisheries and Oceans Canada
200 Kent Street, 14th Floor
Ottawa, Ontario
K1A 0E6
Telephone: 613-993-0982
Fax: 613-990-0168

Footnote a
S.C. 1991, c. 1, s. 12

Footnote b
R.S., c. F-14

Footnote 1
SOR/93-56