Vol. 148, No. 13 — June 18, 2014
Registration
SOR/2014-149 June 6, 2014
COASTAL FISHERIES PROTECTION ACT
Regulations Amending the Coastal Fisheries Protection Regulations
P.C. 2014-650 June 5, 2014
His 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 (see footnote b), makes the annexed Regulations Amending the Coastal Fisheries Protection Regulations.
REGULATIONS AMENDING THE COASTAL FISHERIES PROTECTION REGULATIONS
AMENDMENTS
1. The heading before section 2 of the French version of the Coastal Fisheries Protection Regulations (see footnote 1) is replaced by the following:
DÉFINITIONS
2. (1) The definition “observer” in section 2 of the Regulations is replaced by the following:
“observer” means a person who is designated as an observer by a Regional Director-General and is in possession of an identification card indicating that designation; (observateur)
(2) Section 2 of the Regulations is amended by adding the following in alphabetical order:
“NAFO Convention” means the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries; (Convention de l’OPAN)
3. (1) Subparagraph 5(1)(a)(i) of the Regulations is replaced by the following:
- (i) to engage in commercial fishing,
(2) Subsection 5(1) of the Regulations is amended by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):
- (c) a foreign fishing vessel and its crew to enter Canadian fisheries waters to engage in fishing for purposes of scientific research or any activity described in any of subparagraphs (a)(ii) to (xi) or subsection (1.1) that relates to the scientific research.
4. Section 19.3 of the Regulations is replaced by the following:
19.3 A protection officer may use force under section 8.1 of the Act only if the protection officer is proceeding lawfully and in accordance with the manner set out in sections 19.4 and 19.5 to arrest the master or other person in command of a foreign fishing vessel for the commission of an offence under section 3, paragraph 4(1)(a) or section 5.2 or 5.5 of the Act or of an offence set out in subparagraph 17(1)(a)(ii) of the Act.
5. (1) Subparagraph 21(2)(a)(i) of the French version of the Regulations is replaced by the following:
- (i) dans la division 3L, la division 3N et la division 3O, les stocks de poissons figurant au tableau I du présent article,
(2) Table III to section 21 of the Regulations is replaced by the following:
TABLE III
STATES
| Item | States |
|---|---|
| 1. | Cayman Islands |
6. Sections 24 to 38 of the Regulations are replaced by the following:
24. (1) A fishing vessel of a participating state may fish in the NAFO Regulatory Area for fish of a stock set out in Annex I.A or I.B of the NAFO Measures only if the participating state is a party to the NAFO Convention.
(2) Despite subsection (1), a fishing vessel of a participating state that is not a party to the NAFO Convention may fish in the NAFO Regulatory Area for the fish referred to in that subsection if the fishing is done under an arrangement that is consistent with the NAFO Measures.
7. Section 41 of the Regulations is replaced by the following:
41. Sections 24 and 40 are designated as regulations whose contravention is prohibited under paragraph 5.3(a) of the Act.
8. The Regulations are amended by adding the following after section 46:
IMPLEMENTATION OF THE NAFO MEASURES
46.1 (1) A protection officer who is acting in the performance of their duties in relation to the NAFO Convention may exercise the enforcement powers set out in the NAFO Measures in the NAFO Regulatory Area with respect to
- (a) a foreign fishing vessel of a state party to the NAFO Convention;
- (b) a foreign fishing vessel that is authorized to fish in that Area under an arrangement that is consistent with the NAFO Measures; or
- (c) any other foreign fishing vessel, except a foreign fishing vessel of a state that is set out in Table III or IV to section 21, if the master of the vessel consents to the protection officer exercising those enforcement powers.
(2) The protection officer may exercise those enforcement powers in Canadian fisheries waters with respect to a foreign fishing vessel referred to in paragraph (1)(a) or (b).
9. The portion of section 47 of the Regulations before paragraph (a) is replaced by the following:
47. If a fishing vessel of a participating state is seized and, following a further investigation in port, the protection officer continues to have reasonable grounds to believe that an offence has been committed under section 24 or 40, Her Majesty in right of Canada may recover
10. Schedule IV to the Regulations is replaced by the Schedule IV set out in the schedule to these Regulations.
COMING INTO FORCE
11. These Regulations come into force on the day on which they are registered.
SCHEDULE
(Section 10)
SCHEDULE IV
(Section 22)
| Item | Participating State |
|---|---|
| 1. | The Commonwealth of Australia |
| 2. | The Republic of Austria |
| 3. | The Commonwealth of the Bahamas |
| 4. | The People’s Republic of Bangladesh |
| 5. | Barbados |
| 6. | The Kingdom of Belgium |
| 7. | Belize |
| 8. | The Federative Republic of Brazil |
| 9. | The Republic of Bulgaria |
| 10. | Cook Islands |
| 11. | The Republic of Costa Rica |
| 12. | The Republic of Croatia |
| 13. | The Republic of Cyprus |
| 14. | The Czech Republic |
| 15. | The Kingdom of Denmark |
| 16. | The Kingdom of Denmark (in respect of the Faeroe Islands and Greenland) |
| 17. | The Republic of Estonia |
| 18. | The European Union |
| 19. | The Republic of Fiji |
| 20. | The Republic of Finland |
| 21. | The French Republic |
| 22. | The French Republic (in respect of Saint-Pierre and Miquelon) |
| 23. | The Federal Republic of Germany |
| 24. | The Republic of Guinea |
| 25. | The Hellenic Republic (Greece) |
| 26. | The Republic of Hungary |
| 27. | The Republic of Iceland |
| 28. | The Republic of India |
| 29. | The Republic of Indonesia |
| 30. | The Islamic Republic of Iran |
| 31. | Ireland |
| 32. | The Italian Republic |
| 33. | Japan |
| 34. | The Republic of Kenya |
| 35. | The Republic of Kiribati |
| 36. | The Republic of Korea |
| 37. | The Republic of Latvia |
| 38. | The Republic of Liberia |
| 39. | The Republic of Lithuania |
| 40. | The Grand Duchy of Luxembourg |
| 41. | The Republic of Maldives |
| 42. | The Republic of Malta |
| 43. | The Republic of the Marshall Islands |
| 44. | The Republic of Mauritius |
| 45. | The Federated States of Micronesia |
| 46. | The Principality of Monaco |
| 47. | The Kingdom of Morocco |
| 48. | The Republic of Mozambique |
| 49. | The Republic of Namibia |
| 50. | The Republic of Nauru |
| 51. | The Kingdom of the Netherlands |
| 52. | New Zealand |
| 53. | The Federal Republic of Nigeria |
| 54. | Niue |
| 55. | The Kingdom of Norway |
| 56. | The Sultanate of Oman |
| 57. | The Republic of Palau |
| 58. | The Republic of Panama |
| 59. | Papua New Guinea |
| 60. | The Republic of Poland |
| 61. | The Portuguese Republic |
| 62. | Romania |
| 63. | The Russian Federation |
| 64. | Saint Lucia |
| 65. | Saint Vincent and the Grenadines |
| 66. | The Independent State of Samoa |
| 67. | The Republic of Senegal |
| 68. | The Republic of Seychelles |
| 69. | Slovak Republic |
| 70. | The Republic of Slovenia |
| 71. | Solomon Islands |
| 72. | The Republic of South Africa |
| 73. | The Kingdom of Spain |
| 74. | The Democratic Socialist Republic of Sri Lanka |
| 75. | The Kingdom of Sweden |
| 76. | The Kingdom of Tonga |
| 77. | The Republic of Trinidad and Tobago |
| 78. | Tuvalu |
| 79. | Ukraine |
| 80. | The United Kingdom of Great Britain and Northern Ireland |
| 81. | The United Kingdom on behalf of Pitcairn, Henderson, Ducie and Oeno Islands, Falkland Islands, South Georgia and South Sandwich Islands, Bermuda, Turks and Caicos Islands, British Indian Ocean Territory, British Virgin Islands and Anguilla |
| 82. | The United States of America |
| 83. | The Oriental Republic of Uruguay |
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Background
The Coastal Fisheries Protection Act (CFPA) and the Coastal Fisheries Protection Regulations (CFPR) are the principle enactments underpinning Fisheries and Oceans Canada’s enforcement activities directed at foreign fishing vessels in the high seas area managed by the Northwest Atlantic Fisheries Organization (NAFO) referred to as the NAFO Regulatory Area (NRA) and in other areas of the high seas managed by other regional fisheries management organizations. NAFO’s overall objective is to contribute, through consultation and cooperation, to the optimum utilization, rational management and conservation of the fishery resources of the Convention Area. The CFPR must be revised from time to time to ensure alignment with the NAFO Conservation and Enforcement Measures (NAFO Measures) as they are updated annually. The CFPR have not been amended since 2003.
Furthermore, the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) expressed concern regarding the ambulatory incorporation by reference of the NAFO Measures in the CFPR because the CFPA does not provide express authority for ambulatory incorporation by reference. Incorporation by reference is a drafting technique that includes a second document within another document by only mentioning the second document. There are two types of incorporation by reference: static and ambulatory. These amendments deal with the latter. Ambulatory incorporation by reference is when a regulation-making authority incorporates by reference future amendments to existing material, so that any change that is made to the incorporated material will automatically become part of the regulations.
As a result of measures adopted by NAFO in substantial conformity with the United Nations Fish Stocks Agreement (UNFA), which Canada strongly promoted, the international law regime applicable in the NRA has progressively developed. These amendments to the CFPR reflect this transition.
Issues
The following issues are addressed in the amendments to the CFPR:
- The NAFO Measures are amended regularly but the CFPR have not been amended since 2003. As a result, the numbering and details of certain provisions of the CFPR are out of date and inaccurate.
- The CFPR do not reflect the addition of new parties to UNFA since the CFPR were last amended.
- The SJCSR has requested that the CFPR be amended to eliminate ambulatory incorporation by reference.
- While Canadian fisheries protection officers are currently involved in inspections of NAFO member fishing vessels in the capacity of NAFO inspectors under the authority of NAFO, there is no express domestic legal authority for these inspections in the CFPR.
- Lack of clarity and conciseness in certain provisions of the CFPR could present challenges to Fisheries and Oceans Canada in enforcing the Regulations.
Objectives
The amendments are remedial and administrative in nature, and facilitate the enforcement of the NAFO Measures by clarifying the legal authority of protection officers serving in their capacity as NAFO inspectors.
Specifically, the objectives of the amendments are to
- Ensure that the CFPR are consistent with UNFA and the current NAFO Measures;
- Clarify the legal authority of protection officers to conduct NAFO inspections in the NRA and in Canadian fisheries waters;
- Respond to the concerns raised by the SJCSR by incorporating relevant prohibitions directly in the Regulations. While incorporation by reference cannot be entirely avoided, it is possible to limit the use of ambulatory incorporation by reference; and
- Simplify the implementation of the CFPR to make them more clear, more concise and easier to enforce.
Description
The amendments
- Repeal and replace sections 24 to 38 of the CFPR (which incorporate various NAFO Measures) with a simple provision prohibiting fishing vessels of participating states to UNFA that are not NAFO members from fishing in the NRA. The new provision exempts only those vessels fishing pursuant to an arrangement, such as a chartering arrangement, that is consistent with the NAFO Measures. This new provision reflects the same regulatory intent as before, meaning that it will have no effect on the states permitted to fish, or prohibited from fishing, in the NRA. These amendments will, to a large extent, address the SJCSR’s concerns with the use of ambulatory incorporation by reference. A definition of the NAFO Convention will also be added to the CFPR, since there is no definition in the CFPA;
- Add a section providing domestic legal authority for protection officers in their capacity as NAFO inspectors to carry out inspections in accordance with the NAFO Measures (1) in the NRA or in Canadian fisheries waters of vessels that are entitled to fly the flag of NAFO members or of vessels that are fishing under an arrangement consistent with the NAFO Measures and (2) in the NRA, with the consent of the flag state or the master of vessels entitled to fly the flag of NAFO non-members that are not prescribed in Table III or IV to section 21 of the CFPR. This will clarify that Canadian NAFO inspectors have domestic legal authority to conduct inspections of NAFO member vessels in the NRA and in Canadian fisheries waters, including a Canadian port, in accordance with the NAFO boarding and inspection scheme and of NAFO non-member vessels in the NRA in accordance with the non-Contracting Party scheme in Chapter VIII of the NAFO Measures;
- Update the list of participating states by adding the names of states that have become parties to UNFA since the CFPR were last amended;
- Add a reference to fishing vessels without nationality in the “Use of Force” section. The omission of these vessels from the use of force provisions in the CFPR occurred when sections 5.3 to 5.5 were added to the CFPA in 1999 to implement UNFA. This was an oversight that must now be corrected;
- Delete “Belize,” “Honduras,” “Panama,” “Saint-Vincent and the Grenadines,” and “Sierra Leone” from Table III that lists the flag states prohibited from fishing in the NAFO Regulatory Area; and
- Add a provision under the “Authorized Entry” section to separately treat foreign fishing vessel requests to enter Canadian fisheries waters for commercial fishing and for scientific purposes.
“One-for-One” Rule
The “One-for-One” Rule does not apply to these amendments, as there is no change in administrative costs to business.
Small business lens
The small business lens does not apply to these amendments, as there are no costs to small business.
Rationale
These amendments have no economic impact or implications for business. The changes have no impact on annual compliance costs or savings of any single firm. These regulatory amendments have no impact on employment; no jobs will be lost or gained as a result. The amendments clarify legal authorities and are to a large extent remedial and administrative in nature. While the amendments solidify the legal basis of Canada’s enforcement activities in the NRA, there are no increased costs to Government, since the enforcement activities, including the number of inspections, do not change as result of these amendments.
The amendments update the domestic legal basis for Canada’s enforcement activities in the NRA and have no impact on international trade agreements or obligations.
The approach taken with the amendments will ensure fewer burdens are imposed on the Government than the former approach, which sought to align revisions to the CFPR with annual changes to the NAFO Measures. These amendments ensure that the CFPR are aligned with UNFA and the current NAFO Measures.
Implementation, enforcement and service standards
The Department is ensuring that the CFPR are aligned with developments in the NAFO Measures. As well as updating the Regulations, the amendments simplify the Regulations, ensuring ease of use by stakeholders.
The amendments to the CFPR to incorporate changes to the NAFO Measures are circulated to relevant regional Fisheries and Oceans Canada offices to ensure protection officers are made aware of the changes. They are typically not distributed to parties outside of the federal government, as the day-to-day enforcement of NAFO fisheries is based on the NAFO Measures. These amendments to the CFPR will not be distributed to NAFO participating states because these states have already been made aware of the revisions to the NAFO Measures.
Contacts
Brett Gilchrist
International Fisheries Officer
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Telephone: 613-991-0218
Fax: 613-993-5995
Email: brett.gilchrist@dfo-mpo.gc.ca
Froozan Housany
Regulatory Analyst
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Telephone: 613-993-2973
Fax: 613-990-0168
Email: froozan.housany@dfo-mpo.gc.ca
- Footnote a
S.C. 1999, c. 19, s. 3 - Footnote b
R.S., c. C-33 - Footnote 1
C.R.C., c. 413