Vol. 149, No. 15 — July 29, 2015
SOR/2015-188 July 16, 2015
Regulations Amending the Marine Mammal Regulations
P.C. 2015-1078 July 16, 2015
Whereas section 1 of An Act respecting the Marine Mammal Regulations (seal fishery observation licence) (see footnote a) requires the Governor in Council to make the amendments to the Marine Mammal Regulations (see footnote b) that are provided for in that section;
Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to section 43 (see footnote c) of the Fisheries Act (see footnote d), makes the annexed Regulations Amending the Marine Mammal Regulations.
REGULATIONS AMENDING THE MARINE MAMMAL REGULATIONS
1. Paragraph 32(2)(d) of the Marine Mammal Regulations (see footnote 1) is replaced by 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 contravening subsection 33(1) or of violating a condition of a seal fishery observation licence; and
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 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 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.)
Each year, between late March and mid-May, the Canadian seal harvest may attract both licensed and unlicensed observers, due in large part to the interest that animal rights and animal welfare groups have in monitoring and expressing their views on the humaneness of the seal hunt.
Individuals may seek seal fishery observation licences from the Minister of Fisheries and Oceans, who is authorized to issue seal fishery observation licences if she determines that the issuance of such a license will not cause disruption to the seal fishery. Under the authority of subsection 22(1) of the Fisheries (General) Regulations, the Minister may specify conditions in the licence, such as maintaining a distance of 10 metres from a person fishing for seals.
Under the Marine Mammal Regulations, any individual may observe the seal fishery without a licence by maintaining a distance of one-half nautical mile (i.e. 926 meters) from a person fishing for seals. While infrequent, previous violations of this requirement have created safety risks for those involved in the seal hunt. Specifically, the current one-half nautical mile distance that unlicensed observers must maintain from a person fishing for seals does not provide a significant buffer to allow enforcement officers to intervene in a situation where unlicensed observers intent on disrupting the seal hunt violate the distance requirements. Without the intervention of enforcement officers, unlicensed observers of the seal hunt can put at risk the safety or lives of sealers, enforcement officers and Coast Guard vessel crews.
On November 27, 2013, Private Member’s Bill C-555, An Act respecting the Marine Mammal Regulations (Seal Fishery Observation Licence) [the Act] was introduced in the House of Commons by Greg Kerr, Member of Parliament for West Nova, Nova Scotia. The Act received royal assent on June 18, 2015, and requires the Governor in Council, within 60 days, to amend sections 32 and 33 of the Marine Mammal Regulations. The amendment increases the distance that an unlicensed observer must maintain from a person fishing for seals, except under the authority of a seal fishery observation licence, from one-half nautical mile (i.e. 926 meters) to one nautical mile (i.e. 1 852 meters).
Sealing is culturally important to coastal communities in Atlantic Canada, Quebec, Northwest Territories and Nunavut. It has been described as a time-honored tradition and a way of life, expressing cultural pride and identity.
Canada’s seal harvest is also an economic mainstay for numerous rural communities in these regions. The harvest traditionally takes place from late March until mid-May, during a period when other income-generating opportunities are limited in many of these communities. Traditionally, seals have been harvested for meat and for pelts (which includes the skin with fur still on it), both to use locally and to sell. Historically, pelts have been the most commonly-sold commercial product, although prices have been highly volatile over the years, resulting in large fluctuations in the economic value of the industry. An emerging industry is the use of seal oil for a variety of purposes, as it is rich in omega-3s.
In 2014, more than 12 000 commercial licences were issued to sealers in Atlantic Canada, but only an estimated 1 320 of those were active. The total value of seal landings has been decreasing since 2006, when it was valued at over $34 million and sealers received over $100 per pelt. Significant drops in both the quantity and value of harvested pelts, punctuated by large fluctuations in pelt prices, mainly account for this trend. For decades, Canada has been the largest global exporter of seal products. Uncertainty in global markets and market access restrictions, such as the European Union (EU) and other jurisdictional seal product bans have had an impact on exports in recent years. Canada challenged the EU ban through the World Trade Organization (WTO) dispute settlement process.
Despite the challenges, export statistics demonstrate that there is global demand for seal products. Between 2005 and 2011, Canada exported over $70 million (USD) worth of seal products, including seal pelts, value-added garments, and edible seal products (oil and meat), to more than 35 countries.
Opposition to the seal hunt and to the trade in derivative commercial products persists from animal rights and animal welfare groups that have lobbied heavily and successfully to institute seal product bans internationally. Uncertainty in global markets remains due to these market access restrictions, such as the European Union seal products ban, as well as numerous international bans on the import of seal products from countries, including the United States, Russia, Belarus, Kazakhstan, Taiwan, Mexico, and Switzerland. In China, the importation of edible seals products is prohibited; however, the importation of seal pelts is still permitted. Cumulatively, these bans have had an impact on exports in recent years.
Expanding and maintaining access to markets is of paramount importance for the Government of Canada, which supports a rules-based global trading system and upholds the position that consumers should have the opportunity to make their own informed purchasing decisions. A vital component for a humane hunt has been maintaining an open, transparent and observed hunt to demonstrate that sealers follow a strict three-step process which ensures that animals are killed quickly and humanely. Fisheries and Oceans Canada will endeavor to maintain an open, transparent, and observed hunt even with the aforementioned regulatory change.
This regulatory amendment provides an opportunity to improve the safety of the seal hunt. Doubling the distance that unlicensed observers must maintain minimizes the potential risk to sealers, enforcement officers and coast guard vessel crews from activities of non-licensed observers who try to disrupt the hunt, since it will give enforcement personnel additional time to respond and intervene in situations involving incursions within the observation limits. This regulatory change improves and enhances the effective control and management of seal fisheries to ensure the safety of all those involved.
The Regulations Amending the Marine Mammal Regulations amend sections 32 and 33 of the Marine Mammal Regulations.
Subsection 33(1) is amended by increasing the approach distance from one-half nautical mile to one nautical mile. This is the amended distance that any individual who is observing the seal fishery without a seal fishery observation license must maintain.
Paragraph 33(2)(e) is amended by increasing the distance from one-half nautical mile to one nautical mile. This provision is an exception to subsection 33(1) for those persons who reside on land within one nautical mile from a person fishing for seals.
Paragraph 32(2)(d) is amended to address the possibility that the applicant may have been convicted in the preceding five years of contravening subsection 33(1) when the distance requirement was one half nautical mile. The provision authorizes the Minister to issue seal fishery observation licences if the issuance of the licence will not cause a disruption to the seal fishery. In making this determination, the Minister must consider several factors, including whether the applicant has been convicted in the previous five years of violating the one-half nautical mile distance that unlicensed observers must maintain. To ensure clarity, paragraph 32(2)(d) will now refer to a contravention of subsection 33(1) rather than simply replacing “one-half nautical mile” with “one nautical mile.”
The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs for business.
Small business lens
The small business lens does not apply to this proposal, as there are no costs being imposed on small business.
Consultations were conducted as part of the Parliamentary review process for Bill C-555, which took place from June 11 to November 26, 2014. The House of Commons Standing Committee on Fisheries and Oceans held public hearings during this period, and invited witnesses to express their views on the proposed Bill C-555.
Although the witness list for the Committee was not exhaustive, individuals or organizations could have submitted a brief to the Committee, even if they were not given the opportunity to appear. In this case, no briefs were submitted by individuals or organizations to the Committee with regard to this Act.
The following two key industry stakeholders were asked to appear before the Committee:
- The first witness was Frank Pinhorn, Executive Director, Canadian Sealers Association.
- The second witness was Dion Dakins, Chief Executive Officer (CEO), Carino Processing Ltd. (CEO of the only active processor of seal products at the time of invitation and also Chair of Seals and Sealing Network, a national non-profit organization whose membership includes a cross-section of sealing-related interests).
The Canadian Sealers Association, an association representing approximately 6 000 sealers operating in Canada, is supportive of the Act and the associated regulatory change. During the Standing Committee on Fisheries and Oceans meeting of June 11, 2014, the Canadian Sealers Association expressed its full support. The Canadian Sealers Association has stated publicly that an increase in the distance between sealers and unlicensed observers would improve the protection and safety for both. The Association has also indicated, however, that although these measures are a good starting point, it would prefer to see the increase in distance apply to both licensed and unlicensed observers.
Sealing processing companies involved in seal harvesting activities are also supportive of the Act. Carino Processing Ltd. appeared on November 25, 2014, before the Standing Committee on Fisheries and Oceans. The company supports the Act and the proposed changes to the Marine Mammal Regulations in principle; however, Carino proposed that further measures be taken. These included the recommendation to apply the one nautical mile observation distance to both licensed and unlicensed seal fishery observers and all vessels travelling to and from harvest sites, including marine vessels, aircraft and drones. Carino did indicate that their recommended changes would best be undertaken in other legislation and did not propose that its amendments be included in Bill C-555.
Under current licence conditions, licensed seal fishery observers must maintain a distance of 10 meters from a person engaged in a sealing activity. The 10 metres ensures that a minimal safe distance is prescribed for observers in order for sealers to conduct their work. Any person who has a stated aim of disrupting the seal hunt or interfering with sealers is very likely to be refused a seal fishery observation licence. Similarly, a person who has been convicted in the previous five years of violating their seal fishery observation licence conditions or moving, tagging or marking a live seal may not be eligible to obtain a seal fishery observation licence. Seal observation licences are valid for one day, but can be renewed.
Fisheries and Oceans Canada strives to achieve a balance between the rights of observers and those of sealers and ensure the overall safety of everyone involved in the harvest. Fisheries and Oceans respects the right of organizations and individuals to voice their opposition to the seal hunt, but also recognizes the need to ensure effective control and management of the seal fishery to protect sealers and others involved in the seal fishery from reckless and potentially dangerous activities of persons intent on disrupting the hunt. The amendment is aimed at strengthening the management of the seal harvest to ensure that it continues to be conducted in a safe, humane and orderly manner while further improving the safety of everyone involved.
Enforcement in the seal fishery can be challenging, since most harvesting activities take place on ice pans and floes. Ice pans are floating sheets of ice on the open ocean that are highly susceptible to weather conditions, fluctuating ocean temperatures and wakes from vessels. Seal hunting conditions are often dangerous. Harvesters jump from their vessels to the ice floes to hunt seals.
Given that the harvest is conducted on ice pans and floes, any reckless disruption or protest activity may put sealers’ safety or lives in jeopardy. A vessel seeking to interfere with the seal hunt can cover half a mile in a matter of minutes, leaving enforcement personnel very little time to react to its movements.
Vessels operating in close proximity with the intent to interfere with the seal hunt can create dangerous wakes, crack the ice and destabilize the floes, which increases the risk to sealers of injury and death by drowning and hypothermia. When unlicensed observers in the past violated the half nautical mile distance, enforcement officials were left with relatively little time, in difficult sea conditions, to react and intervene to protect sealers. Changing the current distance will enable enforcement officers to address these concerns.
The amendments will give fishery officers additional time to respond to incursions within the observation limits and Coast Guard vessels time to better manœuvre into position. The amendments will also afford enforcement personnel additional time to advise harvesters of the potential danger, which will provide them with more time to return to the safety of their vessels or to land, as the case may be.
It is expected that increasing the distance that unlicensed seal fishery observers must maintain from a person fishing for seals will reduce the likelihood that persons operating a vessel and wishing to disrupt the seal hunt could bring a vessel dangerously close to sealers, and thereby break up or destabilize ice pans and floes on which the sealers are operating.
There is the potential that the amendments will increase the number of unlicensed observers who seek an observation licence. Fisheries and Oceans Canada has issued over a 1 000 seal fishery observation licences since 1987. In the past 10 years, this has resulted in nearly 900 days of observation by licensed observers. However, because of a decrease in the number of requests for seal fishery observation licences, the issuance of these licences has declined over the years, with only 56 being issued in 2015 (7 individuals observing for 8 days), down from 60 in 2014, and 134 in 2012. Licensed observers can be any member of the general public, but most often are representatives of animal rights and animal welfare organizations.
The number of observation licences issued may be limited depending on the number of sealers operating in the area. Individuals who request a licence are interviewed by enforcement officers and their background and/or police record is verified. There is no cost to the Department of Fisheries and Oceans associated with any potential increase in demand for observation licences.
The amendments will also benefit seal harvesters by providing a safer and more effective environment in which to operate their vessels. Increasing the distance that unlicensed observers are required to maintain from a person fishing for seals provides an additional buffer against physical damage that may be inflicted on sealing vessels.
The seal hunt is considered a “high risk activity,” one that often results in search and rescue incidents due to vessels’ operating in challenging weather and sea conditions. The presence of vessels of unlicensed observers intent on disrupting commercial sealing operations considerably increases the risk factors for sealing vessels, and also impairs search and rescue response. As a result, as evidenced in past incidents, sealing vessels are at increased risk of being damaged by vessels operating in close proximity in a manner intended to disrupt the fishery. Harvesters have experienced, for example, near misses to their vessel stabilizers. Such collisions could entail repairs, salvage operations or complete loss of the vessel.
There are no costs associated with this regulatory amendment. It is expected that changing the distance that an unlicensed observer must remain from individuals engaged in the seal fishery will not have a financial impact on the public, the sealing industry or those who are licensed to observe the seal hunt.
Implementation, enforcement and service standards
The Act received royal assent on June 18, 2015. Accordingly, the requirement to make the regulatory change put forward by Parliament to expand the current distance requirement has been brought into force.
As previously described, the Marine Mammal Regulations regulate matters with respect to the management and control of fishing for marine mammals and related activities in Canada or in Canadian fisheries waters. This includes the management of the seal fishery and the management of people who observe the seal fishery. Fishery officers have the primary responsibility for Monitoring- Control-Surveillance (MCS) activities and enforcement of the commercial seal harvest in Canada.
Vessels approaching the seal harvesting zone are generally warned by enforcement personnel that they are approaching a restricted operating zone and that they are not allowed to enter, unless they have a seal fishery observation licence. Enforcement officers give unlicensed observer vessels an opportunity to cease and desist and find another route or to move away.
Every person who contravenes the Marine Mammals Regulations, including the new amendments to section 32 and 33, is guilty of a summary conviction or indictable offence under the Fisheries Act. A person convicted of a summary conviction offence is liable, for a first offence, to a fine not exceeding $100,000 and, for any subsequent offence, to a fine not exceeding $100,000 or to imprisonment for a term not exceeding one year, or to both. A person convicted of an indictable offence, is liable for a first offence, to a fine not exceeding $500,000 and, for any subsequent offence, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding two years, or to both.
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