This post contains the comments I submitted as part of the federal government consultation on their “Discussion Paper: A Canadian Aquaculture Act“. As a bit of background, aquaculture is currently regulated through a mismatch of federal laws (mainly the Fisheries Act and regulations adopted under it) and provincial laws. There has been many calls over the years by many actors for the federal government to adopt a statute on the topic and comprehensively regulate the sector. The discussion paper is a first step in finally achieving this recommendation. The last two decades have seen an increase in aquaculture and in controversies surrounding it, particularly in BC. For more background, see Angela Lee and I’s article on the subject. My comments follow, more or less, the structure of the discussion paper (some sections are omitted as I did not have any substantial comments to add on them at this time).
Element 1: Application, Purpose, and Definitions
Preambles are important parts of legislation as they offer indicia for the interpretation of provisions by sub/delegates (public servants), tribunals and courts, and stakeholders, mainly by setting out the reasons underlying the enactment of a statute.[1] As such, preambles can be viewed as signals of intent and goals. They should remain broad as the details should be left to the provisions of the statute. Currently, some of the proposed language of the preamble is too specific. I suggest changing “commitment to foster healthy aquatic ecosystems” to “commitment to foster the protection biodiversity, particularly the health of aquatic ecosystems”. Since aquaculture can have impact on land-based biodiversity and on non-aquatic species,[2] starting the statement with a general indication of the broader protective purpose of the statute is warranted. This language signal that while aquatic ecosystems are the main concern given the nature of the regulated activity, the statute aims to ensure the integrity of all potentially impacted segments of biodiversity. I also suggest changing “an effective and nationally consistent regulatory system” to something broader. Effectiveness is implied in the creation of legislative schemes.[3] Including the term is not just redundant, but it also implies that effectivity is a purpose of the statute. While effectivity is always desired in the implementation of any law, highlighting it as a specific goal or purpose might lead to interpretations that limit the strength of other purposes, like conservation, in the name of effectiveness. Language along the lines of “commitment to foster cohesive national standards [or system] for the regulation of aquaculture” would be more appropriate. This language responds better to the critique that the current regulatory system is fragmented and based on a piecemeal approach.[4] It also makes clear the intention that the statute will provide for a uniform national regulatory system.
Additionally, I suggest changing “sustainable development of the aquaculture industry” to “commitment to foster the sustainability of aquaculture [activities]”. Removing the word “industry” enlarges the scope of the preamble and makes it more consistent with the statute’s effect as the statute would not and should not apply only to industrial scale aquaculture and to for profit enterprises. The sustainability of the whole of aquaculture is at play here, not just its industrial side. Sustainability is also a preferable term to “sustainable development” as the latter as gained a negative connotation due to the fact that its operationalisation has often prioritised economic development over the concept’s social and ecological aspects.[5] Removing the word “development” and focussing on sustainability signals that the aim is to ensure to longevity of aquaculture within its socio-ecological framework without the need for growth. Growth in and of itself should not be a goal as many socio-ecological factors may and should legitimately limit this aspect of aquaculture, particularly since we live in a world with finite resources and exceeding them can have dire consequences.[6]
Furthermore, I would add to “further Indigenous reconciliation” “including by respecting [and/or implementing] Aboriginal rights and Indigenous laws [or legal traditions]”. While reconciliation is an important goal and should be included, it is important to state that such goal is minimally achieved through the full recognition and respect of Indigenous peoples’ rights and laws.[7]
The preamble should also mention Canada’s international commitments, particularly the implementation of the Convention on Biological Diversity, the FAO Code of Conduct for Responsible Fisheries, and the UN Sustainable Development Goals, particularly SDG 14. The Convention on Biological Diversity establishes the overarching goals for the conservation and sustainable use of biodiversity, which are of great importance for the future Canadian Aquaculture Act. SDG 14 provides targets that are specific to the marine environment and the FOA Code offers specific guidelines and goals for the sustainability of aquaculture.
The Act should include a purpose provision. Like the preamble, the purpose provision states the aim, policies and principles of the statute. However, unlike a preamble, it has to be relied on when interpreting the statute.[8] A purpose provision thus ensures clarity regarding the objective of a piece of legislation. The purpose of the act should be threefold: (1) to regulate aquaculture activities nationally based on the best available scientific information, community knowledge and Indigenous traditional knowledge; (2) to protect biodiversity from the impacts of aquaculture based on the ecosystem and precautionary approaches; and (3) to ensure the social acceptance and viability of aquaculture activities, particularly in relation to Indigenous rights, food security, and the wellbeing of coastal communities.
Element 2: Leases, licences, and fees
While every aspects of aquaculture cannot be regulated by a single level of government, it is troubling that the approach taken by the federal government seems to maintain the current complex and difficult to navigate web of varying degrees of provincial jurisdictions over aquaculture.[9] Some of these differences are set in stone, but it seems clear that the federal jurisdiction over fisheries grants the federal government with substantial powers which should make it primary regulator for aquaculture activities, at least with regards to finfish aquaculture.[10] A federal regime of licencing is needed to ensure that Canada possesses national standards for aquaculture, particularly regarding environmental protection, fish health and Indigenous rights. A system of licencing similar to the one currently existing in BC, where the province issues leases, but the federal government issues licences, would be appropriate (the federal government could still issue leases if needed, like in the case of PEI). Provinces could continue to issue their own licences as they do with many environmental issues that are regulated by both levels of government, where federal regulations act as a minimum, but provincial regulations are allowed to go further.[11] The federal standards would thus act as a baseline. Importantly, this would allow DFO to retain some degree control over aquaculture activities and allow the Minister to modify or revoke licence when needed regardless of where the aquaculture operation is taking place.
In terms of licencing, the Act should follow too basic principles: (1) legislated standards that limit and frame the discretion of the Minister; and (2) flexible ministerial power regarding already issued licence to deal with issues as they arise. The Act should include clear limits on the power of the Minister to issue licences. Licences should not be issued when the activities poses significant risk to the environment, to fish health (both wild and farmed) or to food security. Licences should not be issued on Indigenous territory without the relevant Indigenous community(ies) free, prior and informed consent. Licences should also not be issued to aquaculture operators who had their licence revoked for environmental or health reasons until they can prove that they have a solid plan in place to address the issues that led to the initial licence revocation. A more detailed framework for licencing (length of time, fees, size of operation, scope of activities, etc.) and the types of licence conditions (reporting obligation, monitoring, environmental mitigation measures, health and safety, etc.) can be created through a regulation. A regulation would allow more flexibility than enshrining this framework in the Act itself and would thus ensure that when new issues or type of aquaculture arise, the framework can be appropriately modified within a reasonable timeframe. The Act should, however, require an impact assessment in lines with best practices before new types of activities (new species, methods, locations, etc.) are included for licencing in the regulation. A regulation would also allow for greater certainty and clarity than broad discretionary power and administrative guidelines/policies. Regulations could also be adopted to specify how significant risk to the environment, to fish health or to food security is measured, how impact assessment of new types of activities should be conducted (following general guidelines established through the Act), and how to proceed when an operator wants a licence following the revocation of their initial licence. Importantly, the terms of licence should avoid sub-delegating decisions to aquaculture operators (e.g. allowing an operator to determine when certain legislated conditions or thresholds are met). Allowing sub-delegation of decision-making involving some aspect of discretion can lead to reduced accountability, lack of access to justice and lack of or weak enforcement/compliance.[12] DFO should retain the primary responsibility in monitoring the compliance of operators to their licence conditions.
The Act should allow the Minister to modify, suspend or cancel leases and licences. This power should be circumscribed largely by regulations stipulating when and how such power should be exercised. Enough flexibility should exist to allow the Minister to modify the licence when new information or situation arise that require changes the licence (e.g. new information about the transmission rate and condition of a particular fish disease or additional mitigation measures are required to ensure sustainability). Such modifications should be based on the same criteria as those required for the inclusion of the initial licence conditions. The Act itself should, however, prescribed conditions when a licence should be suspended or revoked. Violation of the Act, regulations under it or licence conditions and violation of environmental regulations that are not reported to DFO within a reasonable time should automatically lead to the suspension of the licence. If, on a balance of probability, DFO finds that the operators did not act in accordance to due diligence, the licence should then be revoked after suspension. Any serious violation of the same rules, regardless of reporting or due diligence, and the non-compliance with an emergency order should lead to suspension or revocation depending on the severity of the violation and the ability to mitigate the effect of the violation. The Act should also allow for the issuance of emergency orders to force compliance following minor violation of the above mentioned rules, to enforce mitigation and/or cleanup measures following a violation of these rules or to deal with environmental, health or food security crises (e.g. a natural disaster severely disrupts aquaculture operations, a severe outbreak of a fish disease, severe seafood shortage for Indigenous communities that rely on fish for their diet or unforeseen negative impacts on biodiversity). This would allow the Minister to quickly react to emergency situations without having to go through the process of modifying existing licences and to deal with negative environmental and social impacts with celerity. Emergency orders should also be issued when an operator violates Indigenous rights or laws.
Element 3: Indigenous Reconciliation
While provisions that ensure good cooperation are crucial for inter-governmental regulation of activities, they are not, in and of themselves, sufficient to promote true reconciliation. Two measures should be added to the Act to ensure proper respect to the sovereignty and self-determination of Indigenous peoples. First, in accordance with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP),[13] DFO should only licence aquaculture operations that would be situated in the territory of an Indigenous nation or community if the operator and DFO have obtained the free, prior and informed consent of that nation or community. UNDRIP represents minimum standards to ensure the respect of Indigenous rights; short of that, Canada cannot pretend to be genuinely invested in reconciliation.[14] Second, Indigenous nations and communities should have the opportunity, as part of the licencing process, to include licence conditions pertaining to their territory and people (e.g. certain percentage of production must stay in community, certain number of employee must be Indigenous, stricter environmental controls, etc.). Furthermore, for Indigenous nations and communities who wish to operate themselves aquaculture activities, the Act should allow for a delegation of power to these Indigenous nations and communities to allow them to implement their own laws.[15] Not only is such a measure conducive to self-determination and in line with the recommendations of the Truth and Reconciliation Commission regarding Indigenous legal traditions, but empirical evidence have shown that Indigenous managed and co-managed areas have better ecological condition than other areas.[16] I do not go into further details on these measures as their implementation should be done in consultation with Indigenous people to create a system that is workable for them, that accomplishes their goals and that meets their needs.
Element 5: Environmental Protection
The Aquaculture Activities Regulations (AAR), enacted under the Fisheries Act, establishes criteria for the deposit of deleterious substances in waters frequented by fish and for activities disturbing fish habitat, The AAR and the legislation is refers to (such as the Pest Control Products Act) are primarily designed to mitigate environmental impacts; they are not preventive, and they give considerable leeway to operators.[17] The Commissioner of the Environment and Sustainable Development found that the environmental regulation of aquaculture had major design flaws, including the fact that DFO did not assess the efficacy of the AAR in terms of protecting fish.[18] This is sadly a state of affair that is prevalent in Canada and has led to a relatively poor environmental record (when taking into consideration the size of the country and its population).[19] In addition, it has been noted that the fragmented approach to regulating aquaculture (between different regulatory regimes and between jurisdictions) is a roadblock to achieving sustainability.[20] Therefore, simply reproducing the existing framework in the Act, even if potentially enhanced, is not the way forward for a strong aquaculture regime that adequately protects the environment.
The regulation of any substances that could cause harm to biodiversity should be based on a strong articulation of the precautionary approach; meaning, unless a substance is proven safe—in whole or in a certain quantity—taking into account cumulative effects (that is the impact it has when it is mixed with other substances found in the area of the aquaculture operation or emitted by the operation).[21] Overall, aquaculture activities resulting in any environmental contaminants and disturbance of the natural environment should be regulated strictly based on this precautionary approach, the ecosystem approach[22] and best available evidence (whether it be scientific, community-based or Indigenous knowledge), and should be preventive (stopping the negative impact before it happens, such as prohibiting certain pesticides and destructive activities during construction, or dutifully assessing possible impact in advance and refusing licence in cases where impacts are significant or unknown, regardless of mitigation) rather than reactive (leaving mitigation measures for accidents or impacts that simply cannot be avoided).[23] In determining whether to licence an aquaculture operation and what environmental conditions to impose if licenced, and in setting regulatory standard for pollution, DFO should ensure that it has a fully functioning marine spatial planning system capable of measuring cumulative impact. Aquaculture should not be considered in isolation of other environmental stressors in the marine environment, and the best way to ensure that ecosystem impacts are considered on a whole is to set a system that allows monitoring of the overall impact on and establish a sustainability plan (i.e. determining what do we actually need/prioritise between conflicting use of the marine environment and what can this area offer without unbalancing the ecosystem) for a particular ecosystem/geographical regions.[24] Ecologically vulnerable areas, whether they be included in an existing protective measure (e.g. marine protected areas) or not, should be off limit to aquaculture activities. Ecologically vulnerable areas should be identified as part of the marine spatial planning system.
It is crucial that the regulation of disease and other pathologies remain within the purview of the new Act. Disease transmission poses a major risk to the health of both farmed and wild fish and has the potential to cause serious harm to marine biodiversity.[25] It is thus crucial that DFO continues to monitor and study fish pathologies in the aquaculture context and regulate the issue strictly, based on the precautionary approach, especially if farmed fish could be in contact with wild fish and/or are situated in the natural environment. Regulations should require that proof that a disease or disease agent is not harmful to the protection and conservation of fish and marine ecosystems before allowing aquaculture operations to introduce fish with a disease in the natural environment. The absence of conclusive scientific evidence demonstrating the harmful effect of a particular disease or disease agent should not be taken as proof that introducing fish with such a disease or agent is safe for the environment.[26] If an aquaculture stock in an operation situated in the natural environment is found to be contaminated with a disease or disease agent that has not been proven safe, this stock should be destroyed through an emergency order and the licence suspended, and if the operator was not duly diligent, the licence should then be revoked.
Finally, current understanding of science within DFO fails to reflect
the reality that there is no singular, neutral, and objective understanding of what “science” and “risk management” entail. Science, on its own, does not necessarily provide conclusive answers that can adequately guide the inherently political exercise of decision-making based on calculated costs and benefits.[27]
There are concerns that the scientific studies are used as a justification for particular courses of actions rather than a source of information, among others, that can inform the application of the Act and the formulation of regulations. Regulating a sector of activities require political choices bound by the limitations created by legislation. Science should not be used to add a veneer of neutrality and legitimacy to decision-making.[28] The Act should create a framework for the use of science, and other source of information, that ensure a holistic and non-outcome driven process. An independent panel of experts from various relevant fields and community could be tasked by synthesising relevant information—which should, of course, come from DFO, but also from the public through a submission process—and providing it to the decision-makers, who in term could use it to inform their decision-making process. Their reasoning should be clear and justifiable, and based on criteria set in the Act (e.g. precaution, ecosystem-based management, etc.). If a decision-maker decides to go against the panel’s recommendation, they should clearly justify in writing why they are doing so. This process should be made public. This would not guarantee the neutrality of the process, but it would ensure transparency and it would be easier to see why decisions were made at a deeper level than simply pointing to “science”. Furthermore, in case of abuse of power, it would render the task of challenging decisions in courts much easier as the reasoning would be plainly set out and easier for courts to review.
Element 6: Enforcement and Alternative Compliance Measures
The Commissioner of the Environment and Sustainable Development sadly found that there have been serious issues with DFO’s enforcement of aquaculture regulations.[29] Despite documented violations of environmental standards by aquaculture operators, no serious enforcement actions appear to have been taken.[30] To resolve the issues, at least two steps must be taken. Firstly, DFO should commit to a robust program of inspection and monitoring to ensure that it is aware of the activities and potential issues related to aquaculture operations. Secondly, the discretion surrounding enforcement should be circumscribed to avoid potential impunity. Clear threshold and mandatory guidelines should be included in regulations to ensure that proper enforcement measures are always taken and that enforcement measures are appropriate for the gravity of the violation. To further ensure this, the Act should state that if no enforcement measures are taken within 30 days, a member of the public should be allowed to begin legal proceedings to ensure proper enforcement through either conducting a prosecution themselves or by filing an application for judicial review compelling DFO to impose an administrative enforcement measure.
As stated above, licence suspension and revocation should be used to deal with violation of relevant rules. This method can be more effective than a fine or administrative monetary penalties as it directly affect the operator’s ability to produce fish and make a profit regardless of the size of the operation. This avoids the issue of large corporations being able to easily deal with the monetary consequences of fines or administrative monetary penalties and simply internalise this cost as part of doing business. The government should, however, consider creating a special fund or modifying employment insurance rules to insure the income stability of aquaculture employees that are laid off due to an aquaculture licence suspension or revocation. Employees are not responsible for ensuring that an operator respects the law and should not be inadvertently punished when their employer violates the law.
Element 8: Public Reporting and Legislative Review
Strong transparency mechanisms are necessary to instil public confidence in decision-making processes and to facilitate public participation. The proposed extensive public registry—where all decision-making documents, policies, procedures, scientific reports, monitoring, enforcement actions, licences, etc.—is a good measure to achieve a measure of transparency. DFO should also commit to providing plain language summary of technical and/or scientific documents and reports to ensure better accessibility. Finally, the Act should include monitoring and reporting on food security. Currently, DFO reports on the economic aspect of aquaculture, but offer no information on food security despite the concept being mentioned in policy documents. Detailed information on where and how aquaculture products are consumed, as well as its overall impact on the food security of vulnerable groups in Canada should be, at minimum, part of this monitoring and reporting.
[1] Ruth Sullivan, Statutory Interpretation, 3rd ed (Toronto: Irwin Law, 2016) at 162-65.
[2] See e.g. Benoit A Lalonde, Christine Garron & Vincent Mercier, “Analysis of Benthic Invertebrate Communities Downstream of Land-Based Aquaculture Facilities in Nova Scotia, Canada” (2016) 2:1 Cogent Environmental Science 1; House of Commons, Closed Containment Salmon Aquaculture: Report of the Standing Committee on Fisheries and Oceans (March 2013) (Chair: Rodney Weston) at 13-15.
[3] Sullivan, supra at 41.
[4] See Meinhard Doelle & Phillip Saunders, “Aquaculture Governance in Canada: A Patchwork of Approaches” in Nigel Bankes, Irene Dahl & David L VanderZwaag, eds, Aquaculture Law and Policy: Global, Regional and National Perspectives (Cheltenham, UK: Edward Elgar, 2016) 183 at 185–87.
[5] Klaus Bosselmann, The Principle of Sustainability, 2nd ed (Oxford: Routledge, 2017) at chapter 1.
[6] See Will Steffen et al, “Planetary boundaries: Guiding human development on a changing planet” (2015) 347 Science 736.
[7] See United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, 61st Sess, Supp No 49, UN Doc A/RES/61/295 (2007) particularly at Art 19 & 25-29; Grace Nosek, “Re-Imagining Indigenous Peoples’ Role in Natural Resource Development Decision Making: Implementing Free, Prior and Informed Consent in Canada Through Indigenous Legal Traditions” (2017) 50:1 UBC L Rev 95.
[8] Sullivan, supra at 165-67.
[9] Doelle & Saunders, supra at 185-88 & 211-12.
[10] Morton v British Columbia (Agriculture and Lands), 2009 BCSC 136; see also R v Hydro-Québec, [1997] 3 SCR 213 for criminal law power to regulate environmental protection matters.
[11] See 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40.
[12] Pierre Cloutier de Repentigny, “Precaution, Sub-delegation and Aquaculture Regulation: Morton v Canada (Fisheries and Oceans)” (2015) 28:1 J Envtl L & Prac 125 at 144-51.
[13] See Articles 29 & 32.
[14] For more on UNDRIP, see Oonagh E Fitzgerald & Larry Chartrand, eds, UNDRIP Implementation: More Reflections on the Braiding of International, Domestic and Indigenous Laws (Waterloo, ON: Centre for International Governance Innovation, 2018); Brenda L Gunn, “Overcoming Obstacles to Implementing the UN Declaration on the Rights of Indigenous Peoples in Canada” (2013) 31 Windsor Yearbook of Access to Justice 147; Nosek, supra.
[15] See e.g. Jessica Clogg et al, “Indigenous Legal Traditions and the Future of Environmental Governance in Canada” (2016) 29 Journal of Environmental Law and Practice 227; John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2006) at ch 2.
[16] See Tanya C Tran, Natalie C Ban & Jonaki Bhattacharyya, “A review of successes, challenges, and lessons from Indigenous protected and conserved areas” (2020) 241 Biological Conservation 108271; Richard Schuster et al, “Vertebrate biodiversity on indigenous-managed lands in Australia, Brazil, and Canada equals that in protected areas” (2019) 101 Environmental Science and Policy 1.
[17] Angela Lee & Pierre Cloutier de Repentigny, “Farming the Sea, a False Solution to a Real Problem: Critical Reflections on Canada’s Aquaculture Regulations” (2019) 50:1 Ottawa L Rev 29 at 43.
[18] Canada, Commissioner of the Environment and Sustainable Development, Reports of the Commissioner of the Environment and Sustainable Development to the Parliament of Canada: Report 1 — Salmon Farming (Ottawa: Office of the Auditor General, Spring 2018) at paras 1.51-1.63.
[19] See Stepan Wood, Georgia Tanner & Benjamin J Richardson, “What Ever Happened to Canadian Environmental Law?” (2010) 37:4 Ecology LQ 981.
[20] David VanderZwaag, Gloria Chao & Mark Covan, “Canadian Aquaculture and the Principles of Sustainable Development: Gauging the Law and Policy Tides and Charting a Course” (2002) 28:1 Queen’s LJ 279 at 300–01.
[21] Lee & Cloutier de Repentigny, supra at 60-61 & 63.
[22] See FAO, Aquaculture development: Ecosystem approach to aquaculture, FAO Technical Guidelines for Responsible Fisheries No 5, Suppl 4 (Rome: FAO, 2010).
[23] Lee & Cloutier de Repentigny, supra at 62-63.
[24] See Secretariat of the Convention on Biological Diversity & the Scientific and Technical Advisory Panel—GEF, Marine Spatial Planning in the Context of the Convention on Biological Diversity: A study carried out in response to CBD COP 10 decision X/29 (Montréal: Secretariat of the Convention on Biological Diversity, 2012).
[25] Lee & Cloutier de Repentigny, supra at 44-48.
[26] Ibid at 60.
[27] Ibid at 52.
[28] See Mark Brown, “Environmental Science and Politics” in Teena Gabrielson et al, eds, The Oxford Handbook of Environmental Political Theory (Oxford: Oxford University Press, 2016) 491.
[29] Commissioner of the Environment and Sustainable Development, supra at paras 1.75-1.85.
[30] Lee & Cloutier de Repentigny, supra at 54.