FOPO Committee Report

The Federal Role in Aquaculture

Current Legislative and Regulatory Environment

One of the major factors affecting the management and development of aquaculture in Canada is the complex legislative and regulatory environment that governs the practice of aquaculture in this country. The federal government has several key areas of responsibility affecting aquaculture that are summarized in Table 4.

Table 4: Federal departments and agencies with significant
responsibilities for aquaculture

Sections 34, 35 and 36 of the Fisheries Act prohibit the harmful alteration, disruption or destruction (HADD) of fish habitat and prohibit the deposition of deleterious substances. Canadian Coast Guard approval is required for an aquaculture facility under section 5 of the Navigable Waters Protection Act (NWPA) if it is located in navigable waters. Approval of aquaculture tenures under NWPA or HADD may trigger an environmental assessment under the Canadian Environmental Assessment Act.

For the majority (8 of 13) provinces and territories,¹⁸ the respective roles and responsibilities of the federal government and provincial and territorial governments are set out in a series of bilateral Memoranda of Understanding (MOUs) on aquaculture development.¹⁹ These memoranda are intended to delineate responsibility, avoid duplication and improve support for the industry. Under the terms of the MOUs, federal responsibilities include: fish health and inspection; the protection of fish habitat; and scientific research. Provincial and territorial responsibilities include promotion, development and regulation of the industry. They generally have responsibility for licensing and leasing, except for Prince Edward Island, where the federal government retains that responsibility.

A Federal Aquaculture Act

While most provinces, including all of the coastal provinces, have aquaculture statutes and/or regulations,²⁰ there is no federal aquaculture act and there are no federal statutes or regulations that specifically address aquaculture. The lack of a federal aquaculture act and federal aquaculture regulations causes problems for both aquaculture operators and other stakeholders. Aquaculture, as an emerging marine industry, must compete for legitimacy with established marine and aquatic sectors such as the capture fishery and marine transportation. Responsibilities for regulations affecting aquaculture are distributed among numerous federal departments and agencies, and those regulations were often designed with activities other than aquaculture in mind.

Aquaculture is not a fishery in the traditional sense. In reality, it is more akin to the farming of livestock, and as such it requires a legislative and regulatory framework that addresses the needs and particular circumstances of the industry. The legitimacy and rights of the aquaculture industry, which have been strongly supported by the federal government, need to be established not just in policy but also in law. At the same time, the responsibilities of aquaculture operators must be set out unambiguously so that there are clear standards to which they will be held accountable.

The Oceans Act, which came into force in January 1997, provides the legislative foundation for the Oceans Management Strategy. The Strategy is based on three key principles: sustainable development; integrated management of activities; and the precautionary approach. According to some witnesses, these principles are not being respected with respect to aquaculture. There is the view, on the one hand, that salmon farming is not being practised sustainably and that the precautionary approach has not been applied to the development of netcage salmon aquaculture. On the other hand, we also heard concern expressed that opponents of the industry would use the “precautionary approach” as a means to hinder legitimate development of aquaculture by insisting on assurances of zero risk. The Committee believes that clear definitions of “sustainable development” and the “precautionary approach” (or precautionary principle) as they apply to aquaculture would help to resolve any such debate.

The Committee therefore recommends:

RECOMMENDATION 1

That the federal government enact a federal Aquaculture Act that will:

•

recognize in law aquaculture as a legitimate user of aquatic resources;

•

provide a legal definition of aquaculture;

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set out the rights and obligations of fish farm operators;

•

recognize that aquaculture is not a fishery per se but is a form of animal husbandry;

•

provide the legal basis for an appropriate policy framework;

•

adopt a definition of “sustainable development” as follows:

Development that meets the needs of the present without compromising the ability of future generations to meet their own needs;²¹

•

adopt a definition of the “precautionary principle” as follows:

Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation;²²

•

strive to consolidate statutes governing aquaculture so as to avoid duplication and unnecessary bureaucracy; and

•

provide regulation-making powers to consolidate and streamline regulations applicable to aquaculture within a comprehensive set of federal aquaculture regulations.

Federal Aquaculture Regulations (general principles)

As regulations give practical expression to laws, it is equally important that the federal government undertake to develop aquaculture regulations under a new federal Aquaculture Act within a reasonable timeframe. As aquaculture has emerged as a significant economic activity in Canada only in the last two decades, much of the existing regulatory framework is not well suited to this sector. Current federal regulations applicable to aquaculture are scattered throughout federal statutes and, the Committee was told, are sometimes applied inconsistently in different regions of the country. With respect to one of the most significant issues relating to aquatic resource use, the protection of fish habitat and the discharge of wastes, there are no federal regulations governing aquaculture.

This situation causes uncertainty and confusion for aquaculture operators and may be hindering the responsible development of the industry. It also causes frustration for other stakeholders in marine and freshwater aquatic environments who perceive inconsistent or even non-existent monitoring and enforcement of rules and standards for the aquaculture industry.

The Committee recommends:

RECOMMENDATION 2

That regulations be developed pursuant to a federal Aquaculture Act that will:

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provide a clear set of standards for operators, other stakeholders and the public;

•

ensure transparency, consistency and public accountability of all regulatory processes;

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ensure consistent application of high national standards for aquaculture across Canada; and

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provide long-term stability to the industry and encourage responsible and sustainable growth of the industry.

The Committee heard from numerous witnesses that current regulations are not being enforced. Regulations, however, have little value if they are not enforced. In order to determine whether operators are in compliance, DFO must improve its monitoring of fish farm facilities and provide the necessary human and financial resources to get the job done. The Committee believes that ensuring that operators are performing according to high national standards will benefit the industry as a whole and improve public perception of the industry.

The Committee recommends:

RECOMMENDATION 3

That Fisheries and Oceans Canada allocate the necessary financial and human resources to ensure compliance of marine fish farm operations with federal environmental regulations; and, where provincial and territorial regulations exist, that DFO work with the provinces and territories to ensure that their standards, monitoring and enforcement are fully consistent with federal standards. In order to help fund these activities, DFO should establish cost-sharing mechanisms with the industry on the basis that it is being granted access to a public resource.

In the aquaculture industry, as in any other, there will sometimes be irresponsible operators and others motivated by short-term profit. When the problems caused by such operators are exposed in the media, there is a tendency for the whole industry to be perceived as being at fault, to the detriment of the majority of competent and ethical fish farmers.

According to the Canadian Aquaculture Industry Alliance, the industry itself is not well equipped to discipline poor operators. The federal government has a role in ensuring that aquaculture operations comply with federal regulations and guidelines.

The Committee recommends:

RECOMMENDATION 4

That the federal government establish a mechanism to ensure that sanctions are imposed on aquaculture operators who are not in compliance with federal regulations. Such a mechanism should include “whistle blower” protection for industry and government employees.

DFO’s Aquaculture Policy Framework emphasizes the Department’s commitment to creating policy conditions that increase both the public’s confidence that aquaculture is being developed in a sustainable manner and the industry’s competitiveness in global markets. Environmental sustainability is in the interest of both society and the aquaculture industry. Nevertheless, it is essential not only that the industry be environmentally sustainable but that this fact be communicated to the Canadian public. One means to this end would be for the federal government to promote, and for the industry to adopt, an internationally recognized system of environmental management such as the ISO 14001 Standard.²³ Not only would this help to assure the public and other stakeholders of the industry’s commitment to the highest standard of environmental performance, but accreditation to ISO 14001 could also prove to be a useful marketing tool in a very competitive global marketplace.

The Committee recommends:

RECOMMENDATION 5

That the federal government promote a system of continual environmental improvement for aquaculture, such as the ISO 14001 standard and that Canada advocate such a system internationally to create a more “level playing field.”

Jurisdiction and Enforcement

DFO has a legislated mandate to protect fish and fish habitat, which it must uphold even where there are administrative arrangements that delegate these responsibilities to the provinces. Much of the criticism levelled at the aquaculture industry stems from the belief that the federal government, through Fisheries and Oceans Canada and Environment Canada, has not been fully meeting its responsibility to protect wild fish stocks and the environment from the potentially harmful effects of fish farming. This situation serves neither the public interest nor that of the aquaculture industry. DFO must acknowledge its responsibility under the Fisheries Act to protect wild fish stocks and their habitat.

The Committee recommends:

RECOMMENDATION 6

That the provisions of the Fisheries Act, the Navigable Waters Protection Act and the Canadian Environmental Protection Act be applied to all existing and future aquaculture facilities; and

That DFO fulfill its responsibility to safeguard wild fish stocks and marine resources by acting as the public watchdog of both the aquaculture and commercial fishing industries.

Clarification of Roles and Responsibilities of Federal and Provincial Governments

Although the respective roles and responsibilities of the federal government and provincial and territorial governments are set out in the series of bilateral Memoranda of Understanding on aquaculture development, it appears that there is often confusion as to which level of government is responsible for what. There is also frequent overlap between federal and provincial responsibilities — for example, British Columbia has developed its own waste management regulations. DFO’s Aquaculture Policy Framework seeks to improve the aquaculture industry’s competitiveness in global markets even though, under the terms of the MOUs on aquaculture development, it is the provinces/territories that are responsible for promotion and development of the industry and it is the federal government’s responsibility to protect fish and fish habitat.²⁴

In a submission to the Committee, the Sierra Legal Defence Fund presented arguments that “current aquaculture practices in British Columbia can be demonstrated to be illegal based upon Constitutional law, domestic and international law.” Specifically, the Sierra Legal Defence Fund argued that regulation of aquaculture wastes is beyond the legislative competence of the Province of British Columbia, as, based on the Defence Fund’s legal analysis, the federal government has exclusive jurisdiction over marine pollution.

The Sierra Legal Defence Fund has forwarded its brief to the Attorney General of Canada and has called upon the Attorney General to institute legal action to halt the proposed expansion of the fish farming industry in British Columbia.

While the Committee has not rendered a specific recommendation on the submission made by the Sierra Legal Defence Fund, it has taken note of its contents and of their potentially serious implications. Nevertheless, the submission highlights a fundamental issue of jurisdiction with respect to aquaculture. The Committee fears that DFO may be ceding federal constitutional jurisdiction to the provinces, and therefore believes that clarification of the respective legislative responsibilities and obligations of the two senior levels of government is of the utmost importance.

The Committee recommends:

RECOMMENDATION 7

That DFO assert federal constitutional authority over the protection of fish and fish habitat;

That the federal government negotiate with the provinces and territories over areas of shared jurisdiction to ensure that the regulatory roles, responsibilities and accountability of both levels of government be made clear; and

That in the absence of agreement with the provinces and territories within a reasonable timeframe, DFO urge the Governor in Council to seek a reference to the Supreme Court of Canada under section 53 of the Supreme Court Act.

Not only is the industry evolving rapidly but it is also at varying stages of development in different regions of the country. What may have been an appropriate understanding between federal, provincial and territorial governments at one point in time will almost certainly change as requirements, circumstances and capacities change.

The Committee recommends:

RECOMMENDATION 8

That administrative agreements between the federal and provincial/territorial governments be reviewed with respect to effectiveness and compliance every five years or sooner if there is a concern expressed by either level of government.

Office of the Commissioner for Aquaculture Development

On December 17, 1998, the Minister of Fisheries and Oceans, David Anderson, appointed Mr. Yves Bastien to the newly created position of Federal Commissioner for Aquaculture Development (FCAD). The Commissioner was charged with responsibility for developing the aquaculture industry in Canada on behalf of the federal government.

The mandate of the Commissioner was to bring together all appropriate federal government resources, lead required regulatory reforms, and work with the provinces to develop a vibrant, environmentally sensitive aquaculture industry. The Commissioner was to be responsible for implementing the 1995 Federal Aquaculture Development Strategy.

In November 2001, both the mandate of the Office of the Commissioner for Aquaculture Development (OCAD) and the term of the current Commissioner were extended for two years, until March 31, 2004. The extension was intended to allow the Commissioner to focus on providing a 10-year vision for aquaculture development in Canada and to develop recommendations on all aspects of the federal role in achieving this vision.

In the Committee’s view, the Commissioner for Aquaculture Development has a vital role to play in leading regulatory reform of the industry and creating a favourable climate for the industry’s development. Many stakeholders, however, believe that there is a conflict between the Commissioner’s mandate to develop and promote the industry and the Department’s responsibility to effectively regulate it. There is also a commonly held view that regulation has been relegated to a lower priority than development and promotion of the industry within the Department. The fact that the FCAD currently reports directly to the Minister of Fisheries and Oceans reinforces that view and causes confusion and scepticism. This state of affairs undermines the Department’s goal of increasing public confidence that aquaculture is being developed in a sustainable manner. In the Committee’s view, there must be a clear separation between the responsibility of the OCAD for development of the aquaculture industry and that of the Department for regulation, monitoring and enforcement, particularly if the mandate of the Commissioner and the OCAD is to be extended beyond the current term.

The Committee recommends:

RECOMMENDATION 9

That the respective roles and responsibilities of the Office of the Commissioner for Aquaculture Development (OCAD) and the Department be clearly defined in order that it is understood that the OCAD’s role is to foster development of the industry while the role of the Department is to protect wild fish and their habitat through regulation monitoring and enforcement of the industry.

Siting and Coastal Zone Management

One of the reasons often cited for the great potential of the aquaculture industry in Canada is our “abundance of natural resources.” Canada has a vast coastline, the longest of any country in the world, most of it bordered by clean, unpolluted water. The reality is, however, that most of Canada’s coastline is unsuitable for aquaculture development, being too cold, too exposed and too remote. Consequently, most aquaculture development to date has taken place in a few fairly localized areas that include the Broughton Archipelago and Clayoquot Sound in British Columbia, the Bay of Fundy in New Brunswick (Atlantic salmon) and the coastline of Prince Edward Island (shellfish).

Proper siting of fish farms can minimize many of the potential adverse environmental and ecological effects. Characteristics of suitable aquaculture sites include: clean water, suitable temperatures, oxygen, salinity, flow, depth, and bottom type; adequate shelter; and proximity to infrastructure (fuel, power, communications, transportation). Unfortunately, many of the qualities that make for prime aquaculture sites may lead to conflict with other stakeholders (human and otherwise) who value these same characteristics.

Siting is primarily a provincial responsibility. As described earlier, under the federal-provincial MOUs, the provinces (with the exception of P.E.I.) are responsible both for issuing aquaculture leases and for the administration of leasing. Nevertheless, the siting of fish farms impinges on a number of areas of federal jurisdiction, particularly the protection of fish and their habitat under sections 35 and 36 of the Fisheries Act, and safeguarding the navigability of waters under the Navigable Waters Protection Act.

A number of major concerns emerged during the Committee’s hearings regarding the siting of salmon farms: access and the siting process; environmental and ecological concerns, such as the proximity of existing farms to salmon migration routes and to salmon-bearing rivers, and the proximity of salmon farms to one another (and, as a related issue stocking density within farms); the location of salmon farms in areas unsuited to aquaculture; and, on the West Coast, particular concerns of First Nations about the infringement of Aboriginal title and rights through the placement of farms on “Aboriginal” waters.

The aquaculture industry has its own concerns with respect to siting. Fish farmers need access to suitable sites in order to conduct their business. One of their primary concerns is access to new sites; without reasonable access to suitable locations, industry expansion is constrained. Other significant impediments are the duration of leases and security of tenure, and the costs of obtaining permits for new sites. It may take several years before a new aquaculture operation generates a positive return on investment, increasing the importance of long-term, secure leases in order to attract private-sector investment. The current process for licensing new sites is lengthy and expensive. We were told, for example, that a section 5(1) approval under the Navigable Waters Protection Act is valid for five years,²⁵ which is not long enough to generate a return on investment in an aquaculture operation. The industry has stated that the out-of-pocket costs of obtaining permits are not the only expense for operators; the lengthy process time also increases costs to owners. According to the Canadian Aquaculture Industry Alliance,²⁶ virtually every aquaculture operation must now undergo an environmental assessment before receiving a permit; the cost of such an assessment is estimated in excess of $100,000 for a salmon farm and approximately $20,000 for a shellfish farm.

The federal Commissioner for Aquaculture Development has addressed this issue in his Legislative and Regulatory Review of Aquaculture in Canada. The Commissioner notes that most suspension-type aquaculture structures are now being considered “works” under section 5 of the NWPA, which in turn triggers an environmental assessment under the CEAA.²⁷ This requirement is relatively new, and as yet the tools to assist the industry in understanding and complying with the new requirement are lacking. The Commissioner has indicated that because many environmental concerns are similar for various types of aquaculture operation, “Model Class Screening”²⁸ can streamline the assessment process, and reduce costs and time while ensuring the quality of assessments. Although the CAIA supports this approach, it is reluctant to advocate it for fear of being seen as attempting to diminish an important element of its overall environmental sustainability strategy.

We heard allegations of flaws in the siting process in New Brunswick. These included, among other things, the relocation of sites without permission, the granting of site licences before the completion of the consultation process, farms posing a hazard to navigation,²⁹ and a lack of consistency and transparency in the siting process.³⁰

Similar allegations were made about siting in British Columbia. The Sierra Legal Defence Fund informed the Committee that, using coordinates for fish farms obtained from the Province of British Columbia, computerized navigational charts, stated to be current, and information from the Coast Guard regarding aquaculture sites, their staff had carried out a field survey of sites in the Broughton Archipelago. The results of their survey disclosed that “many fish farms are nowhere near the locations reported to the Province or Coast Guard and are nowhere near the locations shown on navigational charts.” Not surprisingly, given the above, they also found fish farms in locations that government information suggests should be fish farm free.³¹

According to the Sierra Legal Defence Fund, a search of the Canadian Environmental Assessment Act registry disclosed that there were “almost no completed CEAA assessments for fish farms.”³² In fact, they found that there appeared to be only three completed assessments.

The Canadian Aquaculture Industry Alliance disagreed that the siting process lacked transparency, although it conceded that it could be improved.³³

According to DFO, one of its immediate priorities in the Maritimes Region was the development of a streamlined and efficient review process for aquaculture site applications in order to ensure that the process was well understood and accessible by the industry and the general public. At the time of the Committee’s visit to the region, in the fall of 2000, DFO, in consultation with the provinces, was in the process of reviewing all outstanding site applications.³⁴

A striking aspect of the testimony presented to the Committee is the gap that currently exists between proponents and opponents of the aquaculture industry: opponents claim the industry is not properly regulated; the industry claims that it is highly regulated and being held to standards not expected of other industries. Much of this polarization may stem from the fact that there are many unknowns surrounding the development of aquaculture. To some extent, aquaculture may also threaten the interests of established marine stakeholders. In any case, continued growth of the industry has the potential to heighten many current concerns.

Integrated Management is one of the two programs designed to implement the Oceans Act (Marine Protected Areas (MPAs) being the other). Integrated Management is a decision-making process, through which stakeholders and authorities work together toward common goals, plans and policies affecting specific issues and geographical areas. It is based on the precept that stakeholders, including the federal government, should seek the collaboration of other interested parties in implementing plans related to oceans, that conflicts should be addressed at the planning stage, and that long-term management plans will be based on regional and national goals.

The Committee believes that adopting an integrated management approach could help to mediate some of the differences between existing stakeholders and the aquaculture industry while assuring the industry of equitable access to aquatic resources and, at the same time, respecting the legitimate interests of other stakeholders.

The Committee recommends:

RECOMMENDATION 10

That the federal government adopt an integrated, coastal zone management approach to aquaculture, as mandated by the Oceans Act that would determine the most suitable locations for aquaculture development and other oceans industries and that would help to:

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integrate the industry with coastal communities, include local decision making, and ensure that local communities benefit from aquaculture activities;

•

develop the industry in an orderly manner to preserve the environment and ecosystems in partnership with coastal communities and other stakeholders;

•

promote communications between stakeholders, reduce and mitigate potential user conflicts, and enhance public awareness of the social and economic benefits of the industry; and

•

develop mutually beneficial links between the aquaculture industry and the traditional fishery.