Copyright © 2019 Senator Dennis Patterson.

April 2018

Speech – 2R, S-203 (Ending the Captivity of Whales and Dolphins Act)

Hon. Dennis Glen Patterson: Honourable senators, I humbly request leave of the Senate to speak to this item.

The Hon. the Speaker: Honourable senators will know that, on April 18, 2018, Senator Patterson moved the adjournment of debate on the seventh report of the Standing Senate Committee Fisheries and Oceans, and that motion was defeated. In a ruling from then Speaker Kinsella in 2009, citing Bourinot, it was decided that, should a member move an adjournment that the house subsequently negatives, that member no longer has a right to speak. Senator Patterson is asking that, notwithstanding this ruling, he be allowed to speak.

Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Patterson: Thank you, honourable senators. I do appreciate the opportunity you have given me to speak to this bill. After all, this bill is about whales. Nunavut provides home waters for most of Canada’s whale population, and many Inuit are whale hunters.

What drew my interest is a provision in this bill that could potentially affect the rights of many Nunavummiut who are whalers. While that clause has been somewhat addressed by this report, I do not feel confident it has gone far enough. I will elaborate on that a little later.

Additionally, my review of the committee transcripts has caused me to question the bill from a legal viewpoint: Does this bill encroach on provincial jurisdiction? Is this the correct avenue for protecting the well-being of cetaceans, or are there already mechanisms in place that could, perhaps, instead be enhanced? Finally, I wonder if this chamber has given enough consideration to the projected economic and social impacts of this bill.

I have concerns regarding clause 4 of the bill. In its original form, the provision would have, if enacted, suddenly thrown up barriers to trade or the sale of whale products within the circumpolar world. Many of us in the North are already well familiar with legislation interfering with Inuit harvesting rights. Our growing fur and fashion industry has been crippled by opposition to the seal hunt, as countries and the European Union banned the import of seal products.

For years, the U.S. Marine Mammal Protection Act has crippled our ability to trade marine mammal products between Canada and the U.S., depriving us of a huge potential market of U.S. polar bear hunters who don’t come to Canada because this law requires them to leave their polar bear skin behind after their hunts. I do want to explain that these hunts are incredibly lucrative for Inuit hunter outfitters. They employ their dog teams, the bears must be hunted by sport hunters in the traditional way and the Inuit are handsomely paid for providing winter clothing, transportation and support for the hunter. This involves entire families in providing clothing, food and supplies.

Were we to then introduce a Canadian law that would criminalize the export from Canada of a cetacean, including a whale, dolphin or porpoise, whether living or dead — and I emphasize the word “dead” — we would, in essence, be limiting the ability of Inuit whalers to share their bounty and earn a return for their efforts. The potential loss of the narwhal tusk industry alone has been described in a brief submitted by the Department of Fisheries and Oceans as a $400,000 industry.

The annual bowhead whale hunt in Nunavut, a major event in the community selected to hold it, results in country food that is shared with family and friends across the territory and throughout the circumpolar world, as well as whale bone carvings that are highly prized and sought after.

The second issue of likely concern to Inuit, I would think, are the provisions in the bill that deal with harvesting. The bill would make it a criminal offence to have the “custody or control of a cetacean,” but note the words used in the bill: “custody or control.”

On March 2, 2017, Adam Burns, Assistant Director General of Fisheries Resource Management at DFO, testified that the “. . . wildlife harvesting rights of Inuit under various land claims agreements include the right to harvest whales in accordance with the respective agreements. The wildlife harvesting rights of the Inuit under these agreements are protected by section 35 of the Constitution Act.”

Whale harvesting in Canada is limited to Aboriginal subsistence needs, but it does include the ability of members of some Aboriginal groups to sell products, for example, narwhal tusks, from whales that are legally harvested. On average, 500 narwhal, 800 beluga and 300 bowhead whales are harvested under strict management conditions on an annual basis in the Canadian Arctic.

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Senators, if we are to turn to the definition of “harvesting” as per the Nunavut Land Claims Agreement, we see that it is defined as “the reduction [of wildlife] into possession and includes hunting, trapping, fishing as defined section 2 of the Fisheries Act, netting, egging, picking, collecting, gathering, spearing, killing, capturing or taking by any means.” Possession is, in fact, custody and control, thus my apprehension surroundings this clause. Whales hunted by Inuit are typically harpooned to secure and, yes, control them in the process of the hunt.

While I do recognize that a standard non-derogation clause was introduced as an amendment, I do not believe that this measure is strong enough to prevent potential court challenges in the future, and I firmly believe that if there is even the slightest possibility of this bill infringing on the rights of Inuit, we must fulfill our duty as per section 35 of the Constitution to adequately consult. We cannot require Inuit to have to go to the expense and trouble of going to court to again define and confirm Indigenous rights. How unfortunate that consultation with Inuit has never taken place during the study of this bill.

Second, colleagues, I draw your attention to testimony and words of caution and advice received by the committee that I believe is important for the entire chamber to hear as part of this debate.

Ms. Joanne Klineberg, Senior Counsel in the Criminal Law Policy Section at Department of Justice Canada, raised two important issues that resonated with me as a lawyer. First, she stated that “. . .the regulation of aquaria would be a matter of provincial responsibility. Any inspections that might take place and codes with respect to best practices and so on would be at the provincial level.”

She goes on to say that the criminal law is meant to be “general in nature”:

Criminal law is about setting down a basic minimum moral code for all society. It strives to do that by setting down rules that are specific enough so that we know when they are being breached and can be enforced but are general enough, because morality is general in nature, that we can describe what is wrong in a general way.

It’s difficult for the Department of Justice to opine on this legislation. We have no expertise in cetaceans, what are the social needs of cetaceans and what are the needs with respect to the water and the materials in tanks that they are kept in. . . .

If the criminal law becomes overly specific and overly particularized, we try to think what it will look like five years or ten years from now. This is a policy question. . . .

. . . there would have to be some confidence there was scientific grounding to the proposition that the mere fact of captivity is cruel to cetaceans.

Honourable senators, the scientific evidence that I read in the testimony does not give me, as a legislator, the confidence that captivity in and of itself is cruel to cetaceans. Dr. Michael Noonan, Professor of Animal Behaviour, Ecology and Conservation at Canisius College, appeared before the committee and testified that he believes that “the singling out of cetaceans for special exemption is unjustified by science.”

Mr. Burns of DFO also gave testimony to the committee and submitted a written brief that outlined an exhaustive list of measures that currently exist under the Fisheries Act to address much of what this bill seeks to accomplish.

Could we improve our overall standards for animal care in captivity? Perhaps. Would that change require amendments to the Criminal Code? I don’t believe that it would.

By failing to recognize the conflicting scientific testimony and criminalizing the captivity of a specific order of animal, we set a precedent that could, in future, be easily extended to other orders or classes, putting at risk all zoos and aquaria in Canada.

If you can now justify the potential infringement on Indigenous harvesting rights with the sop of the non-derogation clause, and you can gloss over the potential jurisdictional overreach, the unnecessary duplication of laws and the precedent that we risk setting, I ask you to consider this: The former and longest-serving mayor, and now chairman of Niagara Falls Tourism, Mr. Wayne Thomson, described the economy of Niagara prior to the opening of the water park Marineland a business that could be charged with criminal activity should this bill be passed, and his support for Mr. Holer, Marineland’s owner, as this:

I’m delighted to be here to support him, to support our community, because this is what we have left. We have a community that is totally dependent on tourism and visitation.

We go back to what we used to call the magic hundred days. When people used to come to Niagara Falls, they would go down and have their picture taken in front of the falls and then leave and go elsewhere on their visitation in Canada. We used to call it the magic 100 days because they would come May 24 weekend and throughout the summer, and then after Labour Day everything would close up and all the jobs would be lost and everybody was on Employment Insurance and out of work. It was pretty sad.

Now we have year-round tourism because of a lot of spectacular things that have happened in our community: casinos, Marineland, fine dining, the wine country in our area, the golf courses — everything is spectacular to visit. Marineland was the start of this and it continues to be the major attraction.

Colleagues, it is not just Marineland shareholders and employees that could be affected by this bill. An entire city’s economy is dependent on attractions like Marineland to support hotels, restaurants, tour operations, taxi and shuttle services, and so much more. This would affect the souvenir shop owner who just renewed his lease, the server who needs to make rent, the janitor who relies on the income to support his family.

And what about the many thousands of children who have a space to visit, experience and learn about these animals in a fun, engaging and interactive way? Our late colleague Senator Enverga said it best at the committee:

I was talking about the kids. When kids go to Marineland — and I remember my kid — they have an experience, they get inspired and they really appreciate nature. That’s what my kid told me . . .”

These are real people that we will affect with this bill, and I don’t think that we can ignore the human cost of what we are proposing when, from what I have read, there is no solid scientific evidence to suggest that captivity alone constitutes cruelty to cetaceans.

Dr. Noonan provided a very balanced statement when he said:

Undoubtedly . . . captivity imposes welfare issues.

The central theme that I want to emphasize is that it is not unique to cetaceans. Does captivity not impose animal welfare issues on every animal in the Toronto Zoo? Not only that, but does it not impose on every animal in the food industry? Does it not impose animal welfare implications for animals in the companion animal industry? We know there are all kinds of welfare concerns for people who are less ideal or enlightened pet owners. Just consider horseback riding and all the animal welfare implications there, or circuses.

Honourable senators, I would respectfully submit that this report does not present to the chamber, either via amendments or by way of observations, the full picture. Consultation with Inuit about the impact of this bill on their harvesting rights and traditional economy has not taken place — a very serious omission. The clear conflict and overlap with the provincial jurisdiction in this bill has not been addressed. That is why, should this bill proceed to third reading, I will not be supporting it.

The Hon. the Speaker: Are honourable senators ready for the question?

Hon. Senators: Question.

The Hon. the Speaker: It was moved by the Honourable Senator Manning that this report be adopted. Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to, on division, and report adopted.)

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The Hon. the Speaker: Honourable senators, when shall this bill, as amended, be read the third time?

(On motion of Senator Sinclair, bill, as amended, placed on the Orders of the Day for third reading at the next sitting of the Senate.)