Shark Finning – How Municipal Laws in Canada are Saving Sharks & Setting an International Example
By: Ryan Venables
2012 April 13
Introduction
Arguably, for the first time since the dinosaurs disappeared, humans are driving animals and plants to extinction faster than new species can evolve, one of the world’s experts on biodiversity has warned.[1] Additionally, conservation experts have already signaled that the world is in the grip of the ‘sixth great extinction’ of species, driven by the destruction of natural habitats, hunting, the spread of alien predators and disease, and climate change.[2]
As time passes and we continue to march into the future, it is easy to see that unless more is done to protect vulnerable species, the list of near threatened, endangered, critically endangered, extinct in the wild, and extinct species will continue to grow.[3] Considering Earth’s oceans span approximately 361,419,000 square kilometers or just under 71% of the global surface, I would suggest particular importance should to be given to ensure this resource is protected for the benefit of all who utilize its resources.[4] I would further suggest, at the top of the list for protection are the various species of sharks.[5]
Globally, sharks have been under attack for approximately the last 20 years,[6] for the value of their fins. Estimates reveal that between 70 and 100 million sharks are killed annually for their fins, which can be valued at up to $300 USD per pound.[7] However, despite the systematic targeting of sharks for their fins, all is not lost. Awareness is being raised, and a global cause to save the sharks, and to protect their fins is growing.
As a result, the focus of this paper will examine many new municipal laws that have recently been enacted which are not only protecting the sharks, but also leading to an outright ban on shark fin products. I would suggest these municipalities are leading a global crusade and are setting an international example on the importance of sharks, and how Earth’s oceans are dependent on sharks as apex predators.[8] I would further suggest Canadian federal laws follow suit and adopt laws which not only outlaw the finning of sharks, but place a wholesale ban on the importation on shark fins. For the purposes of this paper, I will focus on the following issues surrounding shark finning,
- The global relevance of shark finning
- What is the current state of laws surrounding shark finning domestically and globally.
- How domestic implementation of laws is having, or has the potential for having international law implications.
Although it remains to be seen what the future holds for the sharks of today and tomorrow, what can be established is that if the reduction of shark numbers continues, this will not be a problem in need of discussing as sharks will take their place among species such as the golden toad (1989), west African black rhinoceros (2006), Javan tiger (1979), and the Spix’s macaw (2004) all of which are extinct.[9]
The Global Relevance of Sharks and Shark Finning
Sharks of various sorts, shapes, and sizes have been swimming in Earth’s oceans for the last 400 million years,[10] and it was only 18 million of years ago that school bus sized sharks were swimming freely in Earth’s oceans.[11] Commonly known as Megalodon, this 18-meter giant dwarfs the largest great white sharks which are approximately 6-7 meters long.[12] Despite the concerns raised by conservationists like Rob Stewart and Randall Arauz, there are many misconceptions about sharks, and many believe sharks are evil, soulless, man-eating machines that deserve to be eradicated for our safety and protection. The following is but a few of the more common misconceptions about sharks. First, “all sharks are the same. There actually is no typical shark. The nearly 400 species of sharks vary widely in habitat, size, features, diet and lifestyle… [and] more than 80 percent are under five feet. And they range from shallow to deep water and from the Arctic to the Tropics.”[13] Second,
while sharks are primarily meat eaters, different species consume different kinds of food. Teeth often give clues to what sharks eat. Sharks with serrated edges on their teeth rip their prey, while sharks with pavement-like teeth eat mollusks and crustaceans. Sharks eat much less than many people believe; many may go for days or even weeks between feedings. For example, Great White sharks feed on seals during the winter months and consume primarily fish during the summer months. They have extremely slow digestive tracts, thus if they eat something less than optimal it slows down their digestion for days, prohibiting them from eating other things. This makes them selective about what they eat, according to experts.[14]
Third,
shark attacks are common and your chances of getting attacked during water activities are high. The chances of being attacked by a shark are very slim… For perspective, people are 250 times more likely to be killed by lightning than by a shark… Within the period of 1999-2009 an average of fewer than 5 people died from shark attacks, each year worldwide. Falling coconuts, elephant stampedes, and dog bites also kill more people per year than shark attacks. Crocodiles killed more people last year than sharks have in the last 100 years, and they have protected status.[15]
Thus, because of the misconceptions and stereotypes, it is easy to simply turn a blind eye to the persecution of sharks. It begs the question of why should sharks be protected? As mentioned previously, sharks are an apex or top predator in many of their environments. “As apex predators, sharks feed on the animals below them in the food web, helping to regulate and maintain the balance of marine ecosystems. Apex predators directly limit the populations of their prey, which in turn affects the prey species of those animals, and so on.”[16] For example, as mentioned above great white sharks feed on seals in the winter months, and feed on fish, rays, and other sharks in the summer months. I would suggest this is significant, because when great white sharks are feeding on seals, chances are that they are not taking the healthy, vibrant, and young seals from their population. These sharks are, in essence, providing a form of natural selection to their prey by removing old, slow, or sick specimens.
Therefore, when the apex predator is greatly reduced or eliminated from the ecosystem, is throws everything below it out of balance. A team of Canadian and US researchers has concluded that overfishing of sharks in the Northwest Atlantic Ocean in the last 35 years has had devastating effects to the ecosystem.[17]
With fewer large predators in the sea, the number of rays, skates and small shark species has exploded, and these species are decimating such shellfish populations as North Carolina bay scallops and the Chesapeake Bay’s American oysters… Professor Charles H. Peterson and his colleagues calculated that between 1970 and 2005, the number of scalloped hammerhead and tiger sharks may have declined by more than 97 percent along the East Coast and bull, dusky and smooth hammerhead sharks have dropped by more than 99 percent.[18]
This all culminated in 2004, when the reduction of shellfish populations reached such a point that the century old fisheries were forced out of business.[19] Thus, it is an example such as this that points to the importance and prevalence of sharks in their natural ecosystem.
Despite the examples of impacts that have been attributed to declining shark numbers, the numbers keep declining. Therefore, it begs the question of, what is happening globally to sharks have such impacts on their numbers? “Around 60 million sharks are caught every year in the global oceans, and most are for the fin markets in places like Hong Kong and Taiwan.”[20] Sharks are being targeted by various fishing organizations, but they are also suffering dramatic losses because they happen to be by-catch of another target. By-catch is when fishing vessels are targeting another species of fish but because sharks are in the area, and are often hunting the intended prey, such as tuna, they either take the intended bait or become ensnared in the fishing line. However, whether the sharks are specifically targeted or they are caught by chance, the result is the same, death. Fishing vessels are then seizing the opportunity and removing the fins of live sharks and dumping the sharks, often still alive and writhing in pain, into the ocean to either drown, bleed to death, or be eaten by other animals.[21] The main reason sharks are finned while at sea is because the whole shark constitutes approximately 95% of its mass, and shark meat is worth very little in comparison to the value of the fins.[22] Therefore, fishing operations using a simple economics can make the most profits if their hauls are fin only.
When the vessels return to port, as mentioned previously, the demand for the fins is within Asia. Specifically,
customs data shows that more than 100 countries are involved in the business of trading in shark fins. Most are exporters while the main consumer nations are mainland China, Hong Kong, Malaysia, Singapore, Taiwan, and Thailand. The United States and the European Union also import significant quantities to local Chinese communities.[23]
After the fins are processed and sold at market, they most often end up in an ancient Chinese delicacy known as shark fin soup. Affectionately called “extinction in a bowl”[24] by conservationists, shark fin soup’s history dates back several hundred years to the Ming Dynasty where emperors and royalty enjoyed it.[25] Now with the Chinese economy consistently growing, so too is their middle-class. As the middle-class grows, so too does their desire for status symbols, like shark fin soup.[26] “…[S]hark fin soup is now eaten at weddings, corporate celebrations and high-falutin’ business lunches to demonstrate a host’s good fortune. ‘It’s like champagne… [y]ou don’t open a bottle of Coke to celebrate. It’s a ritual.’”[27] Perhaps the most ironic thing about shark fin soup is the fact the shark fin is tasteless and adds only texture to the broth.[28] However, texture is not the only thing shark fins add to the soup. In a 1997 US Environmental Protection Agency study on mercury levels in fish, the levels of mercury in sharks were the highest among all fish tested.[29]
Sharks have more mercury than other fish because they are at the top of the food chain, can live for 50 years or more, eat many fish during that lifetime, and continue to store mercury in their bodies during that time. When we eat shark fin soup, a lifetime’s accumulation of mercury is absorbed into our body. Mercury in fish cannot be trimmed off or destroyed by cooking.[30]
Therefore, how does this translate for human consumption?
The legal limit for consumption of methyl-mercury, set by the United States Environmental Protection Agency, is 0.1 microgram per kilogram of body weight. Studies have shown shark meat contains as much as 1,400 micrograms of methyl-mercury in one kilogram. A person weighing 155 lbs would therefore get 50 times the legal amount in one single portion of shark steak.
Studies conducted by Hong Kong Baptist University and WildAid indicate ¼ of shark fins analyzed had mercury levels higher than the highest allowable standards set by the World Health Organization for fishery products.[31]
To sum up, shark fin soup is tasteless, it is expensive, and it offers significant health risks to those who consume it. Yet, not only are shark fins continuing to be utilized for soup dishes, the demand for shark fins on the rise. It is this demand that is decimating the shark populations worldwide. As previously indicated, estimates reveal that between 70 and 100 million sharks are killed annually. Perhaps figures such as these would not be so staggering, if it were the fact that sharks had short reproductive cycles and that those cycles produced many offspring. However, just the opposite is true.
Sharks populations can’t withstand commercial fishing the way more fecund marine species can. Unlike other fish harvested from the wild, sharks grow slowly. They don’t reach sexual maturity until later in life — the female great white, for example, at 12 to 14 years — and when they do, they have comparatively few offspring at a time, unlike, say, big tunas, which release millions of eggs when they spawn… As a result, the sharks that are netted are either adolescents that have not had a chance to reproduce or are among the few adults capable of adding new pups to the mix…[32]
Although estimates vary, conservationist Shawn Heinrichs indicates that “greater than 90% of most large shark species, and in some cases greater than 99% of certain large species have been depleted from oceans.”[33] As a result, if sharks continue to be removed from the oceans at such a torrent pace, it is without a doubt that they too, like the Javan tiger or Spix’s macaw, will face extinction.
How Laws are Effecting Shark Finning Globally
Sharks have historically been portrayed as villains, creatures to be feared, and man-eaters. Nothing epitomises this more than the 1975 Steven Spielberg movie Jaws. The movie was box office sensation, had arguably one of the more recognizable soundtrack themes in recent movie history, and spawned three sequels. This movie made it acceptable and reaffirmed the popular misconception that sharks are nothing more than mindless killers. As a result, I would suggest the current state of shark finning laws is as a direct result of misconceptions such as these.
This notion is in direct contrast to laws that encompass seals and koalas. Seals and koalas are known as charismatic megafauna, which are “relatively large animal species, typically mammals or birds, that have symbolic value… Because many of these species are endangered, their plight receives great media attention, and their management is well-funded, both by private and governmental agencies.”[34] The toothy grin of a sand tiger shark, or the seal shredding hunting tactics of great white sharks traditionally do not fit into public’s perception of cute and cuddly charismatic megafauna. However, change is underway, but in order to fully comprehend how far laws must come, an examination of the varying levels must be examined. It is through this examination that I submit recent municipal laws in Canada, and specifically in municipalities across Ontario, are leading the way to tougher regulation and changes in the shark finning industry.
Municipal Laws
Looking at the vast interest various regions around the world have for protecting sharks, it was Brantford, Ontario which was the first city in North America to restrict shark fin products.[35] With a population of just over 90,000, the land locked city in Southern Ontario,[36] appears to have no seeming connection with the shark fin trade. However, the revelation that former Brantford Progressive Conservative Member of Provincial Parliament Phil Gillies spearheaded the ban will come to no surprise to conservationists.[37] After leaving pubic office, Gillies has been working as a consultant with WildAid to implement a nationwide ban on shark fin products.[38] Backed by the Mayor Chris Friel, Brantford city council passed the vote unanimously on 2011 May 24 which would see the prohibition of the sale of shark fins.[39] The minutes of the council meeting read as follows:
WHEREAS sharks world-wide are being slaughtered at the rate of 75-80 million a year to satisfy the market for shark fin soup and other shark fin products; and
WHEREAS sharks could be extinct in 10-15 years if the slaughter continues throwing the ecosystem of Oceans in to turmoil affecting bio-diversity; and
WHEREAS the practice of “shark finning” is a wasteful and brutal type of fishing that has been banned in Canadian waters since 1994; and
WHEREAS “shark finning” is a cruel practice that is contrary to the good morals of the citizens of Brantford; and
WHEREAS the consumption of shark fins and related food products by humans may cause serious health risks, including mercury and toxic poisoning, and
WHEREAS the City of Brantford, being a small city far from the Oceans, appreciates the important role that sharks play in the ecosystem around the world;
NOW THEREFORE BE IT RESOLVED THAT Staff be directed to prepare a By- law for Council’s consideration to ban the possession, sale and consumption of shark fin and related food products.[40]
Although the meeting has indicated a by-law will be prepared to outline the “ban on the possession, sale, and consumption of shark fin and related food products”[41] as of April 2012, no such by-law has come into force. Following the passing of this resolution, other municipalities such as Mississauga, Oakville, Toronto, and London have all passed such resolutions.[42]
In London, Ontario, they have taken the resolution one step further by enacting a by-law against shark fin products.[43] In this the Shark Fin By-Law restricts the following,
3.1 No person shall possess, purchase, consume, sell, offer for sale, trade or distribute any Shark Fin with in the Municipality.
3.2 No person shall prepare for consumption, or cause to be prepared for consumption, any Shark Fin within the Municipality.
3.3 No person shall process, or cause to be processed, any Shark Fin within the Municipality.
3.4 No person shall possess, purchase, sell, offer for sale, trade or distribute anything within the Municipality that is described as containing Shark Fin, or that is described as made from Shark Fin, including, without limitation, shark fin soup.[44]
In addition to the by-law, the City of London has outlined steep fines for those caught in contravention of the Shark Fin By-Law. Section 5 outlines the penalties for contravention as,
5.1 (1) Every person who contravenes any provision of this By-law is guilty of an offence.
(2) A director or officer of a corporation who knowingly concurs in the contravention of this By-law is guilty of an offence.
5.2 Any person convicted under this By-law is liable:
(a) upon a first conviction, to a maximum fine of $15,000;
(b) upon a subsequent conviction, to a maximum fine of $30,000.
5.3 Despite section 5.2, where the person convicted is a corporation, the corporation is liable
(a) upon a first conviction, to a maximum fine of $30,000;
(b) upon a second conviction, to a maximum fine of $75,000.[45]
In order to enforce the Shark Fin By-Law the City of London, has added in s. 4.1 which, when used in conjunction with s. 4.1 of the Inspections By-Law A-30 provides that
[a]n Officer, and anyone under the Officer’s direction, may enter on land at any reasonable time for the purpose of carrying out an inspection to determine whether the following are being complied with:
(a) a by-law passed under the Municipal Act;
(b) a direction or order of the City made under the Municipal Act or made under a by- law of the City passed under the Municipal Act;
(c) a condition of a licence issued under a by-law of the City passed under the Municipal Act;
(d) an order made under section section 431 of the Municipal Act.[46]
However, it should be noted that inspection rights to not provide for entry on to land that is being used as a dwelling unless consent or a warrant is obtained prior to entry.[47] For the purpose of the Inspections By-Law and the Shark Fin By-Law an officer is defined as “means an employee, officer or agent of the City whose duties include conducting inspections and/or enforcing the City’s by-laws, and a police officer with London Police Services.”[48] In addition to the right of entry onto land an officer may,
(a) require the production for inspection of documents relevant to the inspection;
(b) inspect and remove documents or things relevant to the inspection for the purpose of making copies or extracts;
(c) require information from any person concerning a matter related to the inspection; and,
(d) alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs necessary for the purposes of the inspection.[49]
Therefore, not only does the Shark Fin By-Law have the power to impose penalty upon conviction, they have the necessary means to carry out the enforcement. However, despite the enactment of the Shark Fin By-Law on 2012 January 31, the City of London has outlined that it will grant an exemption for a period of 180 days in order to allow for any citizens of corporations currently in possession of shark fin products to come into compliance with PH-17.[50] As a result of the Shark Fin By-Law and the accompanying fines, I would suggest that London, Ontario has firmly established itself as a world leader in the protection of sharks.
Although municipalities like London and Toronto[51] have enacted shark fin by-laws, there is resistance coming from other Ontario communities. The Towns of Richmond Hill and Markham, which are both located just north of Toronto in the Region of York, both have publically stated they are opposed to any such shark fin product ban.[52] In fact, while the proposed by-law was being passed in Toronto, two town councilors from Markham, Joe Li and Alan Ho, defiantly dined on individual bowls of shark fin soup as their means of protest.[53] In the months that have followed the shark fin ban in Toronto, both the towns of Markham and Richmond Hill have deferred the issue to the federal government, indicating that it is ultra vires for them to pass such a ban. I would suggest this is nothing more than a smoke screen in an attempt to delay making any kind of a concrete decision on the issue of shark fins. Why would these two towns do this? I would suggest that politics played a role in the decision. In the 2006 census, Markham’s Chinese community comprised 34% of the total population, where as in Richmond Hill, the Chinese community comprised of 21% of the total population.[54] This is in comparison to Toronto, where the statistics are equate to 11% Chinese, and London where the Chinese community is 1%.[55]
However, despite the ethnic demographics of Richmond Hill and Markham, the argument that proposing such a shark fin ban as being ultra vires the municipal council needs to be explored further. Through an examination of s. 92 of the Constitution Act, 1867[56] it is revealed the federal government has granted the provinces the authority with respect to “the administration of justice in the Province,”[57] “the imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the province made in relations to any matter coming within any of the classes or subjects,”[58] and “generally all maters of a merely local or private nature in the province.”[59] Therefore, it can accurately be stated the power to enact such laws is intra vires the provinces, however, does the province of Ontario grant this to municipalities? The Ontario Municipal Act[60] outlines at s. 10(1) that “[a] single-tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public.”[61] Furthermore, at s. 10(2) the MA indicates,
A single-tier municipality may pass by-laws respecting the following matters:
…
5. Economic, social and environmental well-being of the municipality.
6. Health, safety and well-being of persons.
…
8. Protection of persons and property, including consumer protection.
9. Animals.[62]
Looking at ss. (1) and (2), the use of the word single-tier may be called into question. The definitions section of the MA has defined single-tier as “means a municipality, other than an upper-tier municipality, that does not form part of an upper-tier municipality for municipal purposes.”[63] Additionally, an upper-tier municipality “means a municipality of which two or more lower-tier municipalities form part for municipal purposes.”[64] Both Markham and Richmond Hill are single-tier entities in an upper-tier municipality, with the upper-tier being the Region of York. However, neither Richmond Hill nor Markham is alone considered upper-tier municipalities.
Furthermore, should any ambiguity arise within the scope or nature of the law enacted by the municipality, s. 8 confers deference to be paid to the municipality for which the law has been enacted.
(1) The powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues.
(2) In the event of ambiguity in whether or not a municipality has the authority under this or any other Act to pass a by-law or to take any other action, the ambiguity shall be resolved so as to include, rather than exclude, powers the municipality had on the day before this Act came into force.[65]
As a combined result of the reading of the various sections of the MA, I would suggest the MA confers the necessary authority on municipalities to produce and enforce laws with respect to shark fins and their products. Consequently, through an examination of the Shark Fin By-Law in London, Ontario and others of a similar nature, the power granted to municipalities in Ontario with respect to creating laws is leading the wave for change, and is setting an example for the international stage.
Municipal Versus Federal Laws
Despite the recent trend toward tough municipal by-laws in Ontario, federal regulations have been present in Canada since 1994 with respect to shark finning.[66] Despite the nearly 20-year-old regulations, it is the new municipal laws I would suggest, are going to truly make a difference. The 1994 regulation established by the Department of Fisheries and Oceans (“DFO”) outlines that
…the practice of removing the fins and discarding the remainder of the carcass while at sea, was banned in Canada in June 1994. The ban applies to Canadian fisheries waters and Canadian licensed vessels fishing outside of the EEZ. Moreover, the trade and sale of fins must be in appropriate proportion to the quantity of carcasses landed (five per cent of dressed carcass weight).[67]
The proportions of carcass to fin ratio are as follows,
worldwide, the most widely adopted management measure is a 5 percent ratio rule, allowing the landings of a maximum of 5 percent fins relative to the weight of landed carcasses. In Canada, this practice was adopted in 1994 and extended to all Canadian-licensed fishing vessels outside of the 200 mile Exclusive Economic Zone (EEZ).[68]
Although Canada has followed suit and established ratio limitations and regulation with respect to the removal of fins at sea, I would suggest this has done little to stem the tied of shark fins flowing into its borders. Canada is not considered among of the top shark finning nations, nor is it among the top shark fin product consumers.[69]
Despite Canada not being among the top consumers or exporters of shark fins, Canada does have strict regulation with respect to finning. When examining the regulations established by the DFO, Canada has complimented them through an extremely strict set of laws surrounding certain wild animals and plants with respect to the interprovincial and international trade of said species. Known as the Wild Animal and Plan Protection and Regulations of International and Interprovincial Trade Act[70] section 4 of the WAPPA outlines that “[t]he purpose of this Act is to protect certain species of animals and plants, particularly by implementing the Convention and regulating international and interprovincial trade in animals and plants.” It should be noted that the Convention referred to in s. 4 “means the Convention on international trade in endangered species [“CITES”] of wild fauna and flora, made on March 3, 1973 in Washington, D.C., United States and ratified by Canada on April 10, 1975, as amended from time to time, to the extent that the amendment is binding on Canada.”[71] The list of species encompassed in WAPPA is listed in the Wild Animal and Plant Trade Regulations,[72] and of all the species listed only five sharks are present. These include, basking shark, great white shark, whale shark, and two varieties of sawfishes. In an enforcement standpoint, the WAPPA has a great range of penalties as outlined in s. 22 that includes,
(1) Every person who contravenes a provision of this Act or the regulations
(a) is guilty of an offence punishable on summary conviction and is liable
(i) in the case of a person that is a corporation, to a fine not exceeding fifty thousand dollars, and
(ii) in the case of a person other than a person referred to in subparagraph (i), to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months, or to both; or
(b) is guilty of an indictable offence and is liable
(i) in the case of a person that is a corporation, to a fine not exceeding three hundred thousand dollars, and
(ii) in the case of a person other than a person referred to in subparagraph (i), to a fine not exceeding one hundred and fifty thousand dollars or to imprisonment for a term not exceeding five years, or to both.[73]
Furthermore, in the event that a subsequent offence is recorded, the penalty can be doubled upon conviction.[74] Subsection (3) outlines that a person or corporation may be charged for every violation under the act.[75] Therefore, if it is determined that vessel has brought in 500 shark fins; the possibility exists for 500 charges under the act. Additionally, “[w]here an offence under this Act is committed or continued on more than one day, it shall be deemed to be a separate offence for each day on which the offence is committed or continued.”[76] Apart from monetary fines with respect to the contravention of the act, the WAPPA also provides for the possibility that an offender forfeit any proceeds they may have received from the benefit of contravening the act.[77] As can be seen, the WAPPA has extremely strict regulation with respect to endangered animals, however, as previously mentioned, there are over 400 species of sharks and this act covers five. I would further suggest although the penalties associated with s. 22 of the WAPPA are of a great deterrent, the simple fact that they only encompass endangered or species as listed by CITES does not go far enough to protect sharks.
On 2012 December 08, Member of Parliament for New Westminster-Coquitlam Fin Donnelly brought forth Bill C-380, a private member’s bill, which is aimed directly at the shark finning industry.[78] In addressing the House of Commons, MP Donnelly stated, “[t]he best way to curb illegal finning is to stop the international trade in shark fins. Canada can become a world leader in shark conservation and ocean stewardship by adopting legislation to protect sharks.”[79] This bill seeks to amend the s. 3 of the Fish Inspection Act[80] by adding the following,
3.1(1) Except as provided in subsection (2), it is prohibited to import or attempt to import shark fins that are not attached to the rest of the shark carcass
(2) A person may import shark fins that are not attached to the rest of the shark carcass only if the Minister has issued a permit to that person authorizing such an importation
(3) The permit referred to in subsection (2) may be issued only if the Ministers is of the opinion that
(a) the importation supports scientific research relating to shark conservation and conducted by qualified persons; and
(b) the activity benefits the survival of the shark species or is required to enhance their chance of survival in the wild
(4) The Minister may, after consultation with the Minister of Fisheries and Oceans, make regulations respecting the issuance of the permit referred to in subsection (2) and the renewal, revocation, and amendment and suspension of such a permit.[81]
The bill also seeks to amend s. 32 of the Fisheries Act[82] by adding the following,
32.1(1) No person shall engage in the practice of shark finning.
(2) In this section, “shark finning” means the practice of removing the fins from sharks and discarding the remainder of the sharks while still at sea.[83]
Although Bill C-380 is in its infancy, I would suggest it lacks the teeth the municipal by-laws of London have for two specific reasons. First, the Shark Fin By-Law brings capabilities for enforcement on the possession of shark fin products. I would suggest this is a monumental increase over Bill C-380. Those investigating the finning industry have found that many countries have adopted regulations that prohibit the landing of shark carcasses without the fins attached.[84] However, I would suggest these laws do not go far enough. For example, in Costa Rica after intense international pressure, they too enacted regulation to prohibit vessels from finning the sharks while at sea.[85] In order to avoid detection many of the vessels began docking at private docks far away from government oversight and enforcement.[86] Costa Rica then prohibited fishing vessels from coming into private ports, and again in a seemingly endless cat and mouse game, the vessels moved to neighbouring Nicaragua where there are no such laws.[87] It is then suspected that the fins are driven over the Costa Rican border and exported to places in Asian such as Taiwan, Hong Kong, and China.[88]
The second reason I would suggest that Bill C-380 lacks the necessary enhanced regulation is because it not bringing anything new to Canada with respect to shark finning regulations. Although the 2011 proposed Bill is attempting to bring laws domestically to Canada, I would suggest Canada has a long history of shark finning laws. In March 2007, Canada adopted the International Plan of Action for the Conservation and Management of Sharks (“IPOA-Sharks”) into the Canada National Plan of Action for the Conservation and Management of Sharks (“NPOA-Sharks”).[89] The IPOA-Sharks was created in 1999 as a response to the Food and Agriculture Organization of the United Nations (“FAO”) concerns about expanding shark fisheries and negative impacts on shark populations globally.[90]
The IPOA-Sharks is voluntary. It has been elaborated within the framework of the Code of Conduct for Responsible Fisheries as envisaged by Article 2 (d). The provisions of Article 3 of the Code of Conduct apply to the interpretation and application of the IPOA-Sharks and its relationship with other international instruments. All concerned States are encouraged to implement it.
The IPOA-Sharks is not a full strategic plan for the world, rather it prescribes a process whereby individual States, relevant sub-regional arrangements through bilateral and multilateral agreements, and relevant regional fisheries management organizations (RFMO), identify national, sub-regional and regional issues and then appropriately develop national, sub-regional and regional ‘Shark Plans’ to address the issues.[91]
Canada has adopted a regional Shark Plan under NPOA-Sharks and is following the suggested Articles of Code of Conduct.[92] Although IPOA-Sharks indicates it is of a voluntary nature, Article 2(1)(a)-(b) of the Vienna Convention on the Law of Treaties[93] indicate that when a States accepts a treaty (or by other name) they intend to be bound on an international plane to that treaty.[94] As such, should any disputes arise regarding shark finning practices they would be resolved in the International Tribunal for the Law of the Sea (“ITLOS”)[95]. Although there are established routes for conflict resolution at the international level through ITLOS, Bill C-380 is attempting bring domestic regulation into Canada with respect to shark finning. Prior to IPOA-Sharks and NPOA-Sharks, Canada adopted shark-finning laws in 1994 through their Integrated Fisheries Management Plan (“IFMP”) after adopting the recommendations of the International Commission on the Conservation of Atlantic Tuna (“ICCAT”). Going forward under the DFO, the restriction was encompassed under s. 22 of the FA, Fishery General Regulations[96] which prohibited the removal of fins while at sea.
In the end, although Bill C-380 is a very positive step forward in bringing Canada, I would suggest the municipal laws are more direct in targeting what the nature of shark finning by addressing the possession of shark fin products and not stopping at the importation of shark fins.
International Laws
While looking at the decline of sharks over the last number of decades, I would suggest that it is directly attributable to the lack of international laws regulating the shark fin industry. Although there are a number of national and international bodies that oversee various state and non-governmental organizations (“NGO”), for the purpose of this paper I will restrict my examination of international laws to that of CITES and the International Union for the Conservation of Nature (“IUCN”).
CITES “is an international agreement between governments. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival.”[97] Adopted at a 1963 meeting of the IUCN, CITES falls under the umbrella of the United Nations Environmental Programme (“UNEP”) and now boasts 175 member states and is governed by a legally binding Convention.[98] The Convention focuses around three Appendices which are outlined in Article II indicating the following,
1. Appendix I shall include all species threatened with extinction which are or may be affected by trade. Trade in specimens of these species must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.
2. Appendix II shall include:
(a) all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival; and
(b) other species which must be subject to regulation in order that trade in specimens of certain species referred to in sub-paragraph (a) of this paragraph may be brought under effective control.
3. Appendix III shall include all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other Parties in the control of trade.
4. The Parties shall not allow trade in specimens of species included in Appendices I, II and III except in accordance with the provisions of the present Convention.[99]
In order for a species to be added or removed from the Appendices a member state must follow the procedures outlined in Article XV.[100] For example,
species may be added to or removed from Appendix I and II, or moved between them, only by the Conference of the Parties, either at its regular meetings or by postal procedures. But species may be added to or removed from Appendix III at any time and by any Party unilaterally (although the Conference of the Parties has recommended that changes be timed to coincide with amendments to Appendices I and II).[101]
An examination of the Appendices I, II, and III reveals that only five species of sharks are protected under the Convention; these include two sawfishes, basking, great white, and whale sharks.[102] Although, there are only a fraction of shark species on CITES, Costa Rica has recently moved to add the scalloped hammerhead shark to Appendix III.[103]
In addition to the international oversight of the UN sponsored CITES, is the much larger IUCN. The IUCN encompasses not only member nations, but also government agencies, NGO’s, international non-governmental organizations, and affiliates.[104] The IUCN was founded in 1948 as the world’s first global environmental organization, and today it has more than 1,200 members globally.[105] Although the IUCN focuses on environmental issues on a larger scale, in order to conduct a proper comparison with CITES, I will examine the IUCN Red List of Threatened Species (“Red List”). The goal of the Red List is “to provide information and analyses on the status, trends and threats to species in order to inform and catalyze action for biodiversity conservation.”[106] In order for a specific species to be submitted for acceptance on to the Red List, it would first undergo a rigorous process, where a number of factors are checked in accordance with the available data on the species at the time.[107] Following this, categories for species on the Red List include, least concern, near threatened, vulnerable, endangered, critically endangered, extinct in the wild, and extinct.[108] According to the IUCN Shark Specialist Group of the 468 species of actual sharks, 143 types of shark fall within the critically endangered to near threatened categories.[109] Of all of the types of sharks, none are reported to be increasing in numbers.[110] The numbers the Red List is bringing forward is in stark contrast to CITES. Therefore, how do you reconcile the discrepancies between the two organizations? In a recent interview with CITES committee member Dr. Giam Choo-Hoo, he indicates the “IUCN and its Red List, probably the world’s most respected inventory of wildlife endangered by man, is not to be trusted he says, because it is at heart an NGO.”[111] For some context, Dr. Choo-Hoo is a committee member that advises nations on whether or not to control, or in some cases ban, the trade in endangered species.[112] When discussing the specifics of conflicts of interest CITES indicates, members of the Animals Committee do not represent their own region, but can be selected as individual experts.[113] Therefore, Dr. Choo-Hoo representing the Asian region is promoting shark finning and is campaigning against any new regulations despite what the Red List says.[114] For an organization that purports to protect the wellbeing of animals globally, the ironic nature encompasses the fact that CITES does not nor has any plans on implementing a conflict of interest policy for its committee members.[115]
Municipal Laws Versus CITES
After examining the IUCN and CITES, it is known that only CITES has a contravention that is legally binding on the international sphere. However,
[t]he effectiveness of CITES in a particular member country and as a whole is almost entirely dependent upon each country enacting legislation that is sufficient to implement at least the basic tenets of the treaty. Even though member states are technically bound by the terms of CITES, specific implementation legislation is still needed for CITES to be effective.
…
By March 2002, approximately fifty percent of CITES member states either had not provided for any of these basic requirements in their national laws or had enacted legislation that provided for only some of the basic requirements.72 Such dismal compliance rates significantly reduce the effectiveness of CITES on a global level.[116]
Despite this, in order to examine how the municipal laws of Ontario are exceeding CITES, I would suggest the enforcement Article(s) of CITES must be examined. Article VIII of the Convention outlines the measures that may or shall be taken by any party. Paragraph 1 indicates,
The Parties shall take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof. These shall include measures:
(a) to penalize trade in, or possession of, such specimens, or both; and
(b) to provide for the confiscation or return to the State of export of such specimens.[117]
Additionally, Article I defines the term party as “means a State for which the present Convention has entered into force.”[118] As such, according to the Convention, it appears as if the Canadian government is responsible for enforcement of the Convention Articles under WAPPA. As was outlined earlier, the enforcement arm of WAPPA falls under s. 22 with penalties ranging from fines to confiscation of items contrary to the act, as well as forfeiture of proceeds obtained through the offence. Furthermore, it was also mentioned that the Shark Fin By-Law, as I would submit, also had significantly more powerful laws when it came to the protection of sharks. Therefore, I would submit that the new municipal by-laws of cities such as London and Toronto, Ontario have the potential to have a much stronger impact on shark finning than does CITES in its current form.
International Law Implications
After an examination of the municipal, federal, and international laws surrounding shark finning and their products, the focus must be shifted to examine what the international law implications would be should Canada adopt stronger laws similar to those of the Shark Fin By-Law.
Economic
The largest international body governing cooperative states is the United Nations (“UN”), which governs the overwhelming majority of the world’s countries. Currently, 193 member nations hold status at the UN.[119] Founded in 1945 after Second World War, the UN has four primary objectives, one of which is to maintain peace and security of member states through promoting social justice, better living standards and human rights.[120] Although much of what can be seen on the nightly news is UN Peacekeepers with their distinctive light blue helmets, the breadth of UN function goes much deeper. Under the umbrella for the Office of Legal Affairs (“OLA”) is the Division of Ocean Affairs and the Law of the Sea (“DOALOS”). DOALOS has a number of core functions, which includes,
Providing to States and intergovernmental organizations a range of legal and technical services, such as information, advice and assistance as well as conducting research and preparing studies, relating to the United Nations Convention on the Law of the Sea (UNCLOS), the Agreement relating to the implementation of Part XI of UNCLOS and the Agreement for the implementation of UNCLOS relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement) with a view to promoting a better understanding of UNCLOS and the implementing Agreements, their wider acceptance, uniform and consistent application and effective implementation;
…
Conducting monitoring and research activities and maintaining a comprehensive information system and research library on the Convention and on the law of the sea and ocean affairs.[121]
The United Nations Convention on the Law of the Sea (“UNCLOS”)[122] was established in 1982 in Jamaica with more than 150 countries globally. UNCLOS “lays down a comprehensive regime of law and order in the world’s oceans and seas establishing rules governing all uses of the oceans and their resources. It enshrines the notion that all problems of ocean space are closely interrelated and need to be addressed as a whole.”[123] Briefly, there are four ocean zones under UNCLOS. First, territorial sea which ranges from shore to 12nm; second, contiguous zone which extends from 12 to 24nm; third, the Exclusive Economic Zone (“EEZ”) which extends from 12nm to 200nm; and finally, the high seas which begin at 200nm.[124] However, should Canada adopt a strategy such as the Shark Fin By-Law I would suggest that such laws would not translate into having a dramatic economic fallout of shark finning nations as a result of the loss of the industry. For example, in Costa Rica, although much of the world’s most highly publicized shark finning operations occur in the eastern Pacific Ocean, I would suggest that it is not the legitimate and law abiding local industry that is profiting.[125] When
INCOPESCA [Costa Rican Institute of Fishing and Agriculture] allowed foreign vessels to sidestep fishery’s controls by docking at private docks before landing at the public dock. This was only stopped when a group of Puntarenas fisher folk threatened to block the arrival of a cruise ship if INCOPESCA didn’t mandate foreign vessels to land their entire cargo at public docks before continuing on to their private facilities.[126]
The significance of the private docks is that it is away from government oversight, CITES and local regulations. It has been suggested that Taiwanese organized crime factions control much of the shark finning industry.[127] In fact in two separate documentaries Sharkwater: The Truth Will Surface and Gordon Ramsay: Shark Bait both Rob Stewart and Gordon Ramsay were threatened with physical violence and death should they continue to investigate the Costa Rican shark fin industry.[128] However, I would suggest that because of the heavily influenced shark finning industry, local and honest fishermen would remain relatively unaffected by the implementation of such laws in Canada.
Cultural
As previously mentioned, when Toronto passed its shark fin by-law in 2011, Markham town councillors enjoyed a bowl of shark fin soup out of protest for the expansion of the new law by-law. They indicated that their reason was steeped in tradition and that to otherwise ban shark fin and its accompanying soup is affront on Chinese culture.[129] Additionally, CITES committee member Dr. Choo-Hoo has publically stated that “shark fin soup is discriminatory.”[130] Therefore, with the possibility such sweeping bans on shark fin products are discriminatory, we must examine federal laws to determine its validity. Section 15 of the Canadian Charter of Rights and Freedoms[131] outlines that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”[132] In order to begin the s. 15 tests under the Charter we must outline what needs to be examined under s. 15. If the governmental burden is discharged under the section 15(2) test, there is no need to examine s. 15(1). In examining s. 15(2), in R v Kapp[133] the Supreme Court of Canada outlined that a program does not violate the s. 15 guarantee if the government can demonstrate that “(1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds.”[134] In addressing the first point, I would suggest that a government law akin to the Shark Fin By-Law would have achieved an ameliorative or remedial purpose by enacting laws to protect not only sharks but also all global resources in the oceans connected to them. Secondly, I would suggest the new laws would not target a disadvantaged group and would therefore fail the second part of the Kapp test.
As a result, we must undertake on an examination of s. 15(1) of the Charter. The s. 15(1) can be found in Law v Canada (Minister of Employment and Immigration).[135] The test that outlines s. 15(1) is indicated as,
The approach adopted and regularly applied by this Court to the interpretation of s. 15(1) focuses upon three central issues:
(A) whether a law imposes differential treatment between the claimant and others, in purpose or effect;
(B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and
(C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.[136]
In examining the first step of the test, I would suggest that although shark fin soup is traditionally an Asian dish enjoyed primarily by those from Chinese ancestry, the law does not impose differential treatment either in purpose or effect. Second, the enumerated or analogous grounds of discrimination as would potentially be alleged by any defendants would not be one which would violate an enumerated ground, however, I would suggest although traditionally shark fin soup has been associated with the Chinese and other Asian cultures, therefore, it would encompass an enumerated ground. Third, the law in question does not have a purpose that is discriminatory within the meaning of the equality guarantee. I would suggest a reasonable person in circumstances similar to those of any potential claimant would find the potential legislation that imposes differential treatment does not have an effect in demeaning their rights. Therefore, I would submit any proposed shark fin product ban as enacted by the federal government, would withstand Charter scrutiny and be upheld by the courts.
Political
A further international law implication of a Canada adopting similar laws to that of the Shark Finning By-Law is the political for tensions between Canada and other countries should they view Canada’s laws as having issues relating to extraterritoriality and sovereignty infringement.
With respect to shark finning, I would suggest extraterritoriality is most commonly seen in the instances where in foreign vessels are flying the flags of countries from other jurisdictions. In United States v Approximately 64 695 Pounds of Shark Fins[137] the US government boarded and seized a quantity of shark fins from the King Diamond II (“KDII”) in accordance with the Shark Finning Prohibition Act.[138] The claimant, Tai-Loong Hong Marine Products, Ltd (“TLH”) “a Hong Kong company, had chartered the KD II and ordered it to meet foreign fishing vessels on the high seas, purchase shark fins from those vessels, transport the fins to Guatemala, and deliver them to TLH.”[139] The disposition of the case resulted in the claimants being acquitted of the charges because the KDII was not considered a fishing vessel. TLH were able to exploit a loophole in the SFPA by hiring a US vessel to meet them at sea, transport the fins to the vessel in order to avoid culpability of the SFPA.
As is routinely seen in countries such as Costa Rica, Asian vessels are flying the flags of local countries in order to avoid prosecution and international treaties.[140] For example, in a recent case in Costa Rica, a Taiwanese vessel was spotted flying a Belize flag while at a Nicaraguan port off loading an unknown quantity of shark fins. This is being done because foreign vessels are able to sidestep laws in their home country in order to reduce operating costs and sanctions.[141] In a lawsuit filed by PRETOMA in 2006, laws were enacted to force vessels that were flying flags of convenience to land their catches at public docks as opposed to privately docking the ships away from regulatory oversight.[142]
Furthermore, should Canada adopt a new regulation which would incorporate administrative as well as criminal sanction to the possession of shark fin products, I would submit that Canada would be able to assert jurisdiction over those caught in contravention to the act while abroad. The issue of extraterritoriality of offences committed on the sea through the s. 271.1 Canadian Environmental Protection Act[143] which indicates,
(2) An act or omission that is committed in the course of enforcement of this Act and that would be an offence under the Criminal Code if it were committed in Canada, is deemed to have been committed in Canada if it is committed
(a) in an area of the sea referred to in paragraph 122(2)(c); or
(b) in an area of the sea referred to in paragraph 122(2)(g) in the course of hot pursuit that commenced while a ship was in an area of the sea referred to in any paragraphs 122(2)(a) to (e).[144]
Therefore, although the new regulations like the Shark Finning By-Law are intended to be limited to a municipal or domestic scope, I would suggest should the Canadian government see fit to implement such laws, the possibility exists to enforce those who seek to avoid laws by utilizing extraterritoriality. However, I would submit this is not only the most difficult part of getting a cap on the shark finning trade; it is also the most volatile. With numerous countries, with varying levels of participation and domestic regulation in accordance with CITES, it would be extremely difficult for Canadian legislators to make any kind of an impact in an industry that has little to do with Canadians. I would further suggest, political pressure exerted on those countries that find themselves at the epicentre of the shark finning debate would likely result in greater change. Additionally, it is those instances that have found that closing loopholes such as was found in the SFPA and that challenged by PRETOMA that will help deal with some of the issues surrounding extraterritoriality in conjunction with shark finning laws in the future.
Conclusion
The days when man-eating sharks on movie screens have been left in the 1970’s, and we have now moved to a period where unless we do something, there is a very real possibility of the extinction of sharks within the next 10 to 15 years.[145] The courageous move by a number of municipalities in Ontario, Canada is leading the way not only on a domestic scale, but as I would suggest on an international level. The slaughter of sharks is ongoing and persistent. Estimates indicate that three sharks is killed every second globally.[146]
Canada has participated in a shark fin ban since 1994; however, it is not until 2011 when municipalities such as Brantford, London, Toronto, Oakville, and Mississauga have stepped forward to say that their communities will go one step further than the Canadian government. The City of London, Ontario has come forward with the Shark Fin By-Law and has stated unequivocally that the possession of shark fins and their products will be illegal in their jurisdiction, and I would submit, rightfully so.
The municipal laws are even being found to go beyond UN sponsored programs such as CITES. Although CITES has been setup to protect endangered species worldwide, I would suggest it does not go far enough. Problems have been revealed with respect to conflicts of interest, and the amount of enforcement capabilities it actually has. I would suggest the report that only 50% of the participating countries actually have the legislative and enforcement capabilities suggests that CITES is more appearance than substance. This is in addition to the outright dismissal of other, and arguably more respected organizations, such as the IUCN Red List.
Although the newly adopted municipal laws within Ontario appear to have the necessary tools to make a difference in the shark finning industry, their greatest challenge will be for widespread implementation. The international law implications if such laws were made federal could be extremely positive. Although there will be economic, cultural, and extraterritorial implications, I would suggest that a federal implementation of the Shark Fin By-Law is appropriate considering the plight that Earth’s sharks are facing.
Consequently, I would submit that some of the most successful and well known movements have started by a small select few individuals who were looking not only to make a change but a difference. Although sharks are not the cute and cuddly picture of traditional charismatic megafauna, they have an important ecological role to play in our oceans, and with the loss of sharks, so too would the loss of countless other species.
[1] Juliette Jowit, “Humans Driving Extinction Faster than Species can Evolve, say Experts”, The Guardian (07 March 2010) online: The Guardian < http://www.guardian.co.uk/environment/2010/mar/07/extinction-species-evolve>.
[2] Ibid.
[3] IUCN Red List, The IUCN Red List of Threatened Species, online: IUCN Red List < http://www.iucnredlist.org/> [Red List].
[4] World Atlas, Oceans, online: WorldAtlas.com < http://www.worldatlas.com/aatlas/infopage/oceans.htm>.
[5] Note, for the purpose of this essay sharks will include traditional sharks such as Great White and Hammerhead, but also encompass rays, for example Southern Stingrays and Manta Rays, as well skates, for example the thorny skate.
[6] Sharkwater, Education – Shark Finning Facts, online: Sharkwater < http://www.sharkwater.com/education.htm>.
[7] Ibid.
[8] Oceana, Essay Release, “Predators as Prey: Why Healthy Oceans Need Sharks” (July 2008) online: Oceana < http://oceana.org/sites/default/files/o/fileadmin/oceana/uploads/Sharks/Predators_as_Prey_FINAL_FINAL.pdf> [Oceana].
[9] Julie Gerstein, “Extinct in Our Lifetime – 11 Species we’ve Lost Forever” The Daily Green, online: The Daily Green < http://www.thedailygreen.com/environmental-news/latest/recently-extinct-animals-list-470209>.
[10] Shark Foundation, Shark or Fish? online: Shark Foundation < http://www.shark.ch/Information/Evolution/index.html>.
[11] Ibid.
[12] Ibid.
[13] Rome Neal, “Sharks: Facts and Fish Tales”, CBS News (11 February 2009) online: CBSNews < http://www.cbsnews.com/2100-500175_162-551403.html>.
[14] Ibid; Noreen, “Shark Facts and Fish Tales: 5 Biggest Misconceptions About Sharks” AquaViews Online Scuba Magazine (22 September 2010) online: Aquaviews.net < http://aquaviews.net/explore-the-blue/shark-myths-facts-infographic/#>.
[15] Ibid.
[16] Oceana, supra note 8 at 1.
[17] Juliet Eilperin, “Decline of Big Sharks Lets Small Predators Decimate Shellfish”, The Washington Post (30 March 2007) online: Washingtonpost.com < http://www.washingtonpost.com/wp-dyn/content/article/2007/03/29/AR2007032901963.html>.
[18] Ibid.
[19] Ibid.
[20] Tamara Jones, “Shark fin Soup to Blame for Blue Shark Decline”, Planet Earth Online (09 March 2012) online: PlanetEarthOnline < http://planetearth.nerc.ac.uk/news/story.aspx?id=1179>.
[21] Shark Savers, Shark Finning, online: Shark Savers < http://www.sharksavers.org/en/education/sharks-are-in-trouble/705-shark-finning.html>.
[22] Ibid.
[23] Ibid.
[24] Paul Hilton, “Shark-Fin Soup and the Conservation Challenge”, Time Magazine (09 August 2010) online: Time Magazine < http://www.time.com/time/magazine/article/0,9171,2021071,00.html> [Hilton].
[25] Maryanne Bird, “Man Bites Shark”, Time Magazine (26 February 2001) online: Time Magazine < http://www.time.com/time/world/article/0,8599,100660,00.html?iid=fb_share> [Bird].
[26] Ibid.
[27] Hilton, supra note 24.
[28] Ibid.
[29] US, United States Environmental Protection Agency, Mercury Study Report to Congress Volume IV: An Assessment of Exposure to Mercury in the United States (EPA-452/R-97-006) (Washington, DC: US Government Printing Office, 1997) at 64.
[30] Shark Savers, Shark Fin Soup is not Healthy. It can be Toxic., online: Shark Savers < http://www.sharksavers.org/en/learn-more/shark-fin-soup-is-not-healthy.html>.
[31] Bird, supra note 25.
[32] Ibid.
[33] Interview of Shawn Heinrichs by Dan Rather [nd] on HDNet News, online: HDNet News < http://blip.tv/hdnet-news-and-documentaries/dan-rather-reports-shark-fin-clip-4-5895207> [Rather].
[34] Donald G. Kaufman & Cecilia M. Franz, Biosphere 2000… Protecting our Global Environment (USA: Kendall/Hunt Publishing Company, 2000) at 42.
[35] Wency Leung, “Brantford first city in Canada to ban shark fin”, The Globe and Mail (12 October 2011) online: The Globe and Mail < http://www.theglobeandmail.com/life/food-and-wine/trends/trends-features/brantford-first-city-in-canada-to-ban-shark-fin/article2025124/>.
[36] City of Brantford, Demographics & Statistics, online: City of Brantford < http://www.brantford.ca/business/InvestInBrantford/Pages/DemographicsStatistics.aspx>.
[37] CTVToronto.ca, “Brantford is first city to ban shark fin” CTV News (04 June 2011), online: CTV News < http://toronto.ctv.ca/servlet/an/local/CTVNews/20110604/shark-fin-soup-ban-110604?hub=TorontoNewHome>.
[38] Ibid.
[39] Ibid.
[40] Brantford, City Council, “By-law to Ban the Possession, Sale and Consumption of Shark Fin and Related Food Products” by Chris Friel in City Council Minutes (24 May 2011) at 26 [Brantford].
[41] Ibid.
[42] AM980 News, “London’s ‘Anti-Shark Fin’ By-Law Includes Fines of $15,000” AM980News (31 January 2012), online: AM980News < http://www.am980.ca/channels/news/local/story.aspx?ID=1647247>.
[43] Unrevised, City of London, by-law PH-17 Shark Fin By-Law (31 January 2012) [Shark Fin By-Law].
[44] Ibid at s. 3.1-3.4.
[45] Ibid at s. 5.1-5.4
[46] Unrevised, City of London, by-law A.-30 Inspections By-law (03 May 2010) at s. 4.1.
[47] Ibid at s. 7.1
[48] Ibid at s. 2.1
[49] Ibid at s. 4.2(a)-(d).
[50] Ibid at s. 6.1
[51] Unrevised, City of Toronto, by-law No 1247-2011, To Prohibit the possession, sale and consumption of shark fin and shark fin food products, (25 October 2011).
[52] “Toronto shark fin ban studied in other communities”, CBC News (26 October 2011) online: CBCNews < http://www.cbc.ca/news/canada/toronto/story/2011/10/26/toronto-shark-fin.html> [Markham].
[53] Ibid.
[54] 2006 Community Profiles – Markham, online: Statistics Canada < http://www12.statcan.ca/census-recensement/2006/dp-pd/prof/92-591/details/Page.cfm?Lang=E&Geo1=CSD&Code1=3519036&Geo2=PR&Code2=35&Data=Count&SearchText=markham&SearchType=Begins&SearchPR=01&B1=All&Custom=>; 2006 Community Profiles – Richmond Hill, online: Statistics Canada < http://www12.statcan.ca/census-recensement/2006/dp-pd/prof/92-591/details/page.cfm?Lang=E&Geo1=CSD&Code1=3519038&Geo2=PR&Code2=35&Data=Count&SearchText=richmond%20Hill&SearchType=Begins&SearchPR=01&B1=All&Custom=>; Although the 2011 census has been complete and information is available, information with respect to community ethnic statistics are not yet available.
[55] 2006 Community Profiles – London, online: Statistics Canada < http://www12.statcan.ca/census-recensement/2006/dp-pd/prof/92-591/details/Page.cfm?Lang=E&Geo1=CSD&Code1=3539036&Geo2=PR&Code2=35&Data=Count&SearchText=london&SearchType=Begins&SearchPR=01&B1=All&Custom=>; 2006 Community Profiles – Toronto, online: Statistics Canada < http://www12.statcan.ca/census-recensement/2006/dp-pd/prof/92-591/details/page.cfm?Lang=E&Geo1=CSD&Code1=3520005&Geo2=PR&Code2=35&Data=Count&SearchText=toronto&SearchType=Begins&SearchPR=01&B1=All&Custom=>.
[56] 30 & 31 Vict, c 3 [CA, 1867].
[57] Ibid at s. 92(14).
[58] Ibid at s. 92(15).
[59] Ibid at s. 92(16).
[60] SO 2001, c 25 [MA].
[61] Ibid at s. 10(1).
[62] Ibid at s. 10(2).
[63] Ibid at s. 1(1).
[64] Ibid.
[65] Ibid at s. 8
[66] B. Worm & Godin A Cosandey, “Keeping the lead: how to strengthen shark conservation and management in policies in Canada” (2010) 34 Marine Policy 995 at 998 [Worm].
[67] Fisheries and Oceans Canada, National Plan of Action for the Conservation and Management of Sharks (March 2007), online: Fisheries and Oceans Canada < http://www.dfo-mpo.gc.ca/npoa-pan/npoa-pan/npoa-sharks-eng.htm#1.3>.
[68] Worm, supra note 66 at 998.
[69] Suzanne Goldenberg, “Shark conversation is gaining momentum – but are we doing enough?” The Guardian (27 October 2011) online: The Guardian < http://www.guardian.co.uk/environment/2011/oct/27/shark-conservation-gaining-momentum>.
[70] SC 1992, c 52 [WAPPA].
[71] Ibid at s. 2.
[72] Canada SOR/1996-263.
[73] WAPPA, supra note 70 at s. 22(1).
[74] Ibid at s. 22(2).
[75] Ibid at s. 22(3).
[76] Ibid at s. 22(4).
[77] Ibid at s. 22(5).
[78] Canada Bill C-380, An Act to amend the Fish Inspection Act and the Fisheries Act (importation of shark fins, 1st Sess, 41st Parl, 2011 (first reading 08 December 2011) [Bill C-380].
[79] Bill C-380, online: Openparliament.ca < http://openparliament.ca/bills/41-1/C-380/>.
[80] RSC 1985, c F-12 [FIA].
[81] Bill C-380, supra note 78 at s. 3.1(1)-(4).
[82] RSC 1985, c F-14 [FA].
[83] Bill C-380, supra note 78 at s. 32.1(1)-(2).
[84] Rather, supra note 33.
[85] Mike McDonald, “New Costa Rican rule cracks down on illegal shark finning”, Tico Times (30 November 2010) online: TicoTimes.net < http://www.ticotimes.net/Current-Edition/News-Briefs/New-Costa-Rican-rule-cracks-down-on-illegal-shark-finning_Tuesday-November-30-2010>.
[86] Ibid.
[87] Pretoma, News Release, “From Costa Rica to Nicaragua: Foreign fleet now lands shark fins in Nicaragua” (17 May 2011) online: Pretoma < http://www.pretoma.org/from-costa-rica-to-nicaragua-foreign-fleet-now-lands-shark-fins-in-nicaragua/>.
[88] Ibid.
[89] Canada, Fisheries and Oceans Canada, National Plan of Action for the Conservation and Management of Sharks (Ottawa: Communications Branch Fisheries and Oceans Canada, 2007) [NPOA-Sharks].
[90] FAO Technical Guidelines for Responsible Fisheries, FAO, No 4 Suppl. 1 Rome, FAO. 2000 (2000) [Code of Conduct].
[91] Ibid.
[92] Code of Conduct, supra note 89 at Article 5.
[93] Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155 [Vienna]
[94] Ibid at Article 2(1)(a)-(b).
[95] To date no such cases have been brought before ITLOS.
[96] SOR/93-53, at s. 22; NPOA-Sharks, supra note 89.
[97] CITES, What is CITES? online: CITES < http://www.cites.org/eng/disc/what.php>.
[98] Ibid; United Nations Environmental Programme, CITES National Legislation Project, online: UNEP < http://www.unep.org/dec/onlinemanual/Enforcement/NationalLawsRegulations/Resource/tabid/780/Default.aspx>.
[99] Convention on International Trade in Endangered Species of Wild Fauna and Flora, 03 March 1979, UNEP Res 8.4, UNEP at Article II [Convention].
[100] Ibid at Article XV.
[101] CITES, The CITES Appendices, online: CITES < http://www.cites.org/eng/app/index.php>.
[102] Convention, supra 99 at Appendix II.
[103] Helmut Nickel, “Costa Rica: Proposal to list Hammerhead Sharks in CITES Appendix III”, Shark Year Magazine (14 March 2012) online: Shark Year Magazine < http://sharkyear.com/2012/costa-rica-proposal-to-list-hammerhead-sharks-in-cites-appendix-iii.html#.T2G1w9Q511A.facebook>.
[104] IUCN, Who are our Members?, online: IUCN < http://www.iucn.org/about/union/members/who_members/>.
[105] IUCN, About IUCN, online: IUCN < http://www.iucn.org/about/>.
[106] IUCN Red List, Red List Overview, online: IUCN Red List < http://www.iucnredlist.org/about/red-list-overview> [Red List].
[107] IUCN Red List, Assessment Process, online: IUCN Red List < http://www.iucnredlist.org/technical-documents/assessment-process>.
[108] Red List, supra note 106.
[109] Shark Specialist Group, Shark 101, online: Shark Specialist Group < http://www.iucnssg.org/index.php/faqreader/items/shark-101>.
[110] Ibid.
[111] Interview of Dr. Giam Choo-Hoo by Frank Pope (15 March 2012) The Times.
[112] Ibid.
[113] Ibid.
[114] Ibid; Juliet Eilperin, “Is the shark fin ban culturally biased?”, The Washington Post (22 February 2012) online: The Washington Post < http://www.washingtonpost.com/blogs/blogpost/post/is-the-shark-fin-ban-culturally-biased/2012/02/21/gIQAbIj9SR_blog.html> [Eilperin].
[115] Ibid.
[116] Mara E. Zimmerman, The Black Market for Wildlife: Combating Transnational Organized Crime in the Illegal Wildlife Trade (2003) 36 Vand J Trans’l L 1657 at 1665-1666.
[117] Convention, supra not 99 at Article VIII para 1.
[118] Ibid at Article I.
[119] United Nations, Member States of the United Nations, online: United Nations < http://www.un.org/en/members/index.shtml>.
[120] United Nations, UN at a Glance, online: United Nations < http://www.un.org/en/aboutun/index.shtml>.
[121] United Nations, Division for Ocean Affairs and the Law of the Sea, online: United Nations < http://untreaty.un.org/ola/div_doalos.aspx?section=doalos>.
[122] United Nations Convention on the Law of the Sea, 10 December 1982, DOLAS.
[123] United Nations, Oceans and Law of the Sea, online: United Nations < http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm>.
[124] John H. Currie, Craig Forcese, & Valerie Oosterveld, International Law: Doctrine, Practice, and Theory (Toronto: Irwin Law, 2007) at 357.
[125] “Costa Rica: Fishermen protest President’s office over lack of control of international shark finning vessels” Underwater Times (16 June 2011), online: UnderwaterTimes.com < http://www.underwatertimes.com/news.php?article_id=23471895010>.
[126] “Editorial: shark finning continues in Costa Rica as regulators turn a blind eye” Underwater Times (01 August 2011), online: UnderwaterTimes.com < http://www.underwatertimes.com/news.php?article_id=61520947381>.
[127] Sharkwater, Education – Sharkwater Production Notes, online: Sharkwater < http://www.sharkwater.com/sharkwaterProductionNotes.htm>.
[128] Ibid; Aida Ekberg, “Gordon Ramsay held at gunpoint for doing something nice”, Yahoo (04 January 2011), online: Yahoo < http://voices.yahoo.com/gordon-ramsay-held-gunpoint-7525798.html>.
[129] Markham, supra note 53.
[130] Eilperin, supra note 114.
[131] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c11 [Charter].
[132] Ibid at s. 15.
[133] 2008 SCC 41, [2008] 2 SCR 483.
[134] Ibid at 41.
[135] [1999] 1 SCR 497.
[136] Ibid at 88.
[137] 520 F 3d 976 (USCA 2008) [KDII].
[138] US, HR 5461, Shark Finning Prohibition Act, 106th Cong, 2000 [SFPA].
[139] KDII, supra note 137.
[140] Pretoma, Vessel seen landing shark fins in Nicaragua fins then imported into Costa Rica (20 July 2011), online: Pretoma < http://www.pretoma.org/vessel-seen-landing-shark-fins-in-nicaragua-fins-then-imported-into-costa-rica/>.
[141] Pretoma, News Release, “Profile Research: Research, conservation, and management of sharks in Costa Rica” (nd) online: Pretoma < http://www.pretoma.org/downloads/pdf/sharks-profile.pdf>.
[142] Ibid.
[143] SC 1999, c 33 [CEPA].
[144] Ibid at s. 271.1(2).
[145] Brantford, supra note 40.
[146] Stop Shark Finning, What you can do to stop shark finning, online: Stop Shark Finning < http://www.stopsharkfinning.net/help-sharks.htm>.
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