After months of consultations, there is a move afoot on the Senate standing committee on fisheries and oceans to quietly kill a bill that would ban the captivity of whales and dolphins in Canada.

The committee is set to meet tomorrow evening to consider its draft report on Bill S-203 but, in a rare and unusual move, it hasn’t set aside time for a clause-by-clause review of the proposed legislation — just an in-camera session to consider a draft report.

Sources say that likely means the committee will be recommending to the Senate that it not proceed with the bill.

The issue that has arisen in the committee’s work in recent weeks is about the need for aboriginal consultations. One section of the proposed legislation would amend The Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act to prohibit the import of a cetacean into Canada and the export of a cetacean from Canada. Andrew Burns, a lawyer for Marineland in Ontario, appeared before the committee in mid-May and argued the bill intrudes into issues of constitutionally protected Inuit rights, specifically around the sale of narwhal tusks and harvesting wildlife.

He said the park’s position was that the duty to consult with the Inuit had not been fulfilled.

“Marineland supports an effective and thorough consultation process with the Inuit prior to the clause-by-clause review of this bill, whether or not the duty to consult is mandated by the courts,” Burns said.

Former Liberal Sen. Wilfred Moore, the original sponsor of the bill when it was introduced in 2015, told the committee in his opening remarks in late February that he was aware of concerns among some that the import and export restrictions of the bill were overly broad.

“With the current language they could potentially apply to dead scientific specimens or carved narwhal tusks going across the border. Such an application was certainly not my intention, so clause 4 could be amended to clarify that the restriction only applies to live cetaceans and reproductive materials that can be used in captive breeding,” he said.

More to the point, a statute — even if it did somehow prevent the export of carved narwhal tusks — could never override rights that are protected in the Constitution, as the rights of First Nations are. The courts also have found that Senate committees do not have a duty to hold aboriginal consultations.

At a June 8 meeting of the committee, Sen. Don Plett picked up where Marineland had left off and raised the issue of aboriginal consultations again. The Conservative whip has made no attempt to hide his support for Marineland and the Vancouver Aquarium at committee or on social media.



“We’ve had testimony here that this could have a very significant impact on the Inuit indigenous communities, this particular piece of legislation, up to the tune of $400,000 to a half a million dollars a year because of harvesting of different parts of animals in the sea,” he said. “And we’ve heard that there has not been any consultation with them, in as far as what impact that could have on them.”

Plett said before the committee can go to a clause-by-clause review of the bill, members would have to have either the minister or the deputy minister of fisheries come before them and give members the political answers they’re looking for on the issue.

“… We will look silly passing legislation that is clearly so fundamentally flawed if we don’t have an opinion from the government at what they’re going to do with the legislation if they get it over there,” Plett said.

To which one Senate source responded: “Don Plett doesn’t give a shit what the government thinks about anything. The idea that Plett is not comfortable absent this government’s view is a joke. He’s hostile to the government. He’s using all of this as excuses.”

Committee Deputy Chair Elizabeth Hubley agreed the government’s position should not be of concern to members of the committee.

“I don’t think the Senate should allow the government to make up our minds,” she said. “I don’t think it’s the Senate’s role to inquire of the government if this bill is going to please them or not. I think the evidence from world-renowned scientists has to carry some weight in this.”

Bill S-203 was first tabled in June of 2015 by Moore with the goal of phasing out the keeping of whales, dolphins and porpoises in captivity in Canada, with exceptions made for rescues and rehabilitation.

Specifically, it seeks to protect whales and dolphins from suffering the physical and psychological harms of captivity, which include social isolation, illness, reduced life expectancy and higher infant mortality. It also aims to end the trade in their reproductive materials.

So what do narwhal tusks and aboriginal culture have to do with keeping whales and dolphins out of captivity?

“To me this is simply a continuation of the obstruction that Sen. Plett has been doing all along,” Moore said. “The Senate is supposed to be a place of debate, gathering evidence and making a decision. Not using the rules to put off the making of that decision.”

After months of hearing from witnesses on the issue, it’s time for the committee to make a decision based on what it has heard, he said.

Plett has made several efforts to roadblock the bill since it was introduced. In late November, those opposed to it moved a ‘hoist’ motion to try and bump the bill six months down the road for a second reading, which essentially would have killed it. Sen. Scott Tannas subsequently withdrew the motion. Moore reached mandatory retirement age from the Senate in January, which meant he could no longer sit on the committee for hearings on the bill or even ask questions of witnesses.

Now, he said he suspects Plett’s goal is to stall the bill until the summer recess with the hope that Parliament will be prorogued in the fall. If that happens, the bill dies and the whole process has to start over again.

“If that’s not his plan, then why not go ahead and let it stand on its own and let the vote take place?”

Moore thinks Plett knows that the public supports the bill’s intent. Senators have been swamped with emails and calls from the public in support of this bill for months. One staffer said over the weekend her office was inundated with hundreds of calls and thousands of emails as word began to spread that the bill was in peril.

“I think it’s fair to say most of the evidence has been in support of the bill,” he said, noting it’s not insignificant that in the middle of all of this, the Vancouver Park Authority has told the Vancouver Aquarium that it will no longer permit cetaceans to be kept in captivity on its property.

“A public authority makes that decision based on what they’re hearing from the public. The public has had it with this,” Moore said.

“This is a wonderful opportunity for the Senate to do something really good and make a good mark for Canada internationally in how we deal with our cetaceans. I think most of the senators understand that and probably agree with that. I think that Plett probably anticipates that if this goes to the Senate for a vote it will carry and then we can get it to the House for a vote.”

Jennifer Harnden, Plett’s director of parliamentary affairs, disputes Moore’s statement that most evidence was in support of the bill, noting “there were 14 witnesses opposed to the bill; 10 in favour; eight neutral (government reps. etc.).”

“With respect to this bill being stalled/ delayed, I am not sure how Sen. Plett would possibly do that, considering the bill is still in committee. He is only one of 13 members on the committee, and is not even a member of the steering committee, which makes decisions on witnesses and the meeting schedule,” she said. “Sen. Plett has been and continues to be supportive of the committee reporting back to the chamber on their findings. It is the committee as a whole who will determine whether that happens, and what the content of that report would be.”

Hubley said she couldn’t comment on what might happen tomorrow evening in terms of next steps, but added she fully supports S-203.

“This bill has been on my mind and hopefully it’s going to go through properly,” she said. “I support the amendments that Sen. Moore suggested to strengthen the bill. That’s as emphatic as I can get.”

Hubley said everyone on the committee is well aware that aboriginal rights are of utmost importance and said Moore’s proposed amendment would address any concerns around narwhal tusks.

“There is nothing that has been raised that the amendment would not fulfill,” she said. “This has to come to a resolution, but I think (the committee) has to do due diligence in coming to that conclusion. I think the Senate has an opportunity to support Canadian values through this bill and I certainly will support it all the way.”