Protection And Conservation Of Marine Mammals In Canada: A Case For Legislative Reform

The twentieth century was the century of modem whaling, as new technologies allowed whalers to exploit enormous numbers of whales from all oceans for processing into various products for industry and trade. Seals and sirenians (manatees and dugongs) were also heavily exploited in the 1900s, adversely affecting the populations of certain species. On entering the twenty-first century, numerous governments and organizations, and much of the general public now regard marine mammals, especially cetaceans, as having aesthetic and economic importance as well as intrinsic value outside the realm of exploitation. During the past decade, general awareness of the need to study the natural world at the ecosystem level has heightened, and it is recognized that threats to the survival of marine mammals go beyond that of commercial exploitation. Potential threats include habitat degradation, noise and chemical pollution, accidental strikes by ships, and incidental catch by commercial fisheries. Strategies for resolving these problems include the creation of marine protected areas to protect critical habitat, international cooperation in the development of conservation programs, and an increase in biological research to enhance management. The formulation of strong conservation policies and legislation at the national level is necessary to provide guidance for the implementation of these potential solutions. There is precedence at the international level for the types of protection needed. One example is the global moratorium on commercial whaling initiated in 1982 and implemented in 1986 by the International Whaling Commission (1WC). Despite the moratorium, however, a number of large whale species, including the right, Eubalaena glacialis; bowhead, Balaena mysticetus; blue, Balaenoptera musculus; sperm, Physeter macrocephalus; and humpback, Megaptera novaeangliae, are still considered endangered by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), the U.S. Division of Endangered Species, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). International whale sanctuaries were declared by a large majority of IWC members; for example, in 1979, in the Indian Ocean to 550S latitude; and in 1994 in the waters of the Southern Hemisphere, south of 40°S latitude. The prohibition against commercial whaling activities in these waters illustrates strong international support for the protection of whales. Since the declaration of the International Convention for the Regulation of Whaling (ICRW) in 1946, other international environmental conventions have been established. Several of these conventions have had implications for marine mammals and have set the stage for global conservation activities, including the United Nations Convention on the Law of the Sea (UNCLOS), the United Nations Conference on Environment and Development Agenda 21 action plan, the Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), CITES, and the Convention on Biological Diversity (CBD). While some nations have enacted legislation and taken policy stands on the protection and conservation of marine mammals, national legislative protection for marine mammals is far from universal. Canada, a nation normally recognized for its strong environmental and natural heritage initiatives, largely views marine mammals as a resource to be exploited. Canada was a signatory to the ICRW and a member of the International Whaling Commission (IWC), but in 1982 withdrew its membership stating it no longer had an interest in whaling. However, aboriginal whaling in Canada continues with annual takes of approximately seven hundred beluga, Delphinapterus leucas; and three hundred narwhal, Monodon monoceros, respectively. Since 1991, there has been a renewed interest in bowhead hunting in the western Arctic by native communities after some sixty years of not hunting this species. In 1996, after a twenty year pause, communities in the eastern Arctic also resumed bowhead whaling. The eastern bowhead stock is considered highly endangered-less than five hundred are thought to remain-and the international community has responded strongly to this problem. Walrus, Odobenus rosmarus, and up to ten species of seal can be taken by aboriginal peoples in Canada; harp, Pagophilus groenlandicus; and hooded seals, Cystophora cristata; are all hunted commercially by non-aboriginals. Canada has maintained a firm pro-commercial sealing policy, which has strengthened over the years despite public and international opposition. Currently, there are no comprehensive conservation programs or initiatives for marine mammals, and no deliberate legislative or policy commitments for their protection. Under the Canadian system, marine mammals and other marine animals are included in the definition of "fish" in the Fisheries Act. The definition of "fish" first appeared in the Fisheries Act in 1927. Despite numerous amendments of the Fisheries Act, this biologically invalid definition has been retained. Because of the lack of a comprehensive conservation framework, and the biologically inaccurate classification of marine mammals as "fish," marine mammal management has suffered. Marine mammals should not be defined as "fish," and arguments against this definition can be made on the basis of science, values, and management. The great biological differences between these two taxa, at both the physiological and behavioral levels, lead necessarily to different management requirements. Societal attitudes toward fish and marine mammals are different, and they are valued in different ways for different reasons. For example, fish is a primary food resource that represents a major basis of revenue, and a significant contribution to the economies of many communities. Marine mammals have intrinsic value, non-consumptive tourism value, and cultural/subsistence value for numerous Aboriginal communities, but limited commercial exploitation value. A program designed to manage the exploitation of one will not address the conservation issues of the other. In Canada, Fisheries and Oceans Canada, the administrative body for ocean and ocean resource issues, is focused primarily on conserving diverse fish stocks for industry. Thus, absent an economic rationale as the driving force for the conservation of marine mammals, such industry concerns will necessarily take precedence over domestic conservation concerns. International treaties often lack provisions for seals because it is assumed that their conservation is a domestic issue, even though many are highly migratory. Thus, domestic legislation is particularly important for the reason that seals normally reside within coastal waters and the Exclusive Economic Zone (EEZ) of a nation. For the above reasons, special legislation for marine mammals is warranted as the basis for enhanced management and protection. The United States, Australia, and New Zealand have enacted legislation for the protection of marine mammals that is separate from the legislation pertaining to fisheries, and each nation has deliberately avoided considering them as fish. For example, the now repealed 1952 Australian Fisheries Act explicitly excluded all cetaceans from the definition of "fish," and by 1991, under the Australian Fisheries Management Act, all marine mammals were excluded from the definition. Canada's continued adherence to this definition has been detrimental because it defines the way government, including fisheries and wildlife managers, perceive marine mammals, and influences the way humans use marine mammals in Canada. This article examines the limitations existing within Canada's policy and legislative initiatives for the conservation and protection of marine mammals, as compared with other selected nations. The United States, Australia, and New Zealand are the jurisdictions chosen for comparison, because these nations possess the most advanced marine mammal legislation, regulations, and programs in the world, and because they are similar to Canada in terms of commitment to the environment and conservation. International conventions relating to marine mammals were reviewed, and special emphasis was placed on Canada's obligations under these conventions. The main components integral to effective marine mammal conservation in those jurisdictions were used to mold a revised framework to increase marine mammal protection in Canada, and to further enhance the Canadian legislative and regulatory structure. Recommendations stemming from this framework fit both the current legislative structure and an ecosystem approach to marine conservation under Canada's Oceans Act.

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