CRITICAL ANALYSIS OF THE SALMON AQUACULTURE REVIEW
An Interim Report byThe Environmental Law Centre
29 January 1998
The Environmental Law Centre (“ELC”) is a student run, non-profit organization dedicated to research and education on environmental law issues from a public interest perspective. Education, outreach, networking, and research programmes provide students with hands on experience and opportunities working in environmental law. The ELC draws its student-body primarily from the University of Victoria law school, but is open to any student with an interest in environmental law.
This interim-report represents the ELC’s endeavor to critically evaluate the Salmon Aquaculture Review. The report was written by seven, second-year University of Victoria law students. All seven students participated in the research and writing of this report, solely on a volunteer basis. The major findings of the report were presented in a public forum held at the University of Victoria on January 29, 1998.
The ELC gratefully acknowledges the financial support of the David Suzuki Foundation. The authors express their sincere gratitude to the following individuals for the assistance and advice they provided: Jim Fulton, Ann Rowan and Nick Scapillati of the David Suzuki Foundation; Karen Wristen of Sierra Legal Defence Fund; former ELC Executive-Directors Wally Braul and Chris Tollefson; Pat Hutchins and Albert Peeling; and fellow students Peter Macpherson and Ian Webb. Lynn Hunter and Aaron Welch are also thanked for their valuable contributions to planning the public forum. Of course, responsibility for this report rests solely and exclusively with its authors.
Table of Contents
- Executive Summary
- Chapter 1: Introduction
- Chapter 2: Waste Discharges
- Chapter 3: Salmon Farm Siting
- Chapter 4: Escaped Farm Salmon
- Chapter 5: Farm and Wild Fish Health
- Chapter 6: Interactions With Coastal Mammals & Other Species
- Chapter 7: First Nations and The Salmon Aquaculture Review
- Introduction: Historical & Legal Context
- Aboriginal Concerns & Rights Infringements Raised During the SAR
- First Nations Recommendations
- Salmon Aquaculture Review Recommendations
- Evaluation of the Salmon Aquaculture Recommendations
- Delgamuukw (Supreme Court of Canada, December 1997)
- Future Options for First Nations
- Chapter 8: Conclusions
Open net-cage salmon farming allows for the direct discharge of wastes into the surrounding marine environment. The primary waste sources include uneaten feed, fish wastes (faeces or inorganic urea and ammonia), anti-foulants, pesticides, morts, human sewage, and other solid wastes such as empty feed bags, ropes and floats. The total quantity of waste produced by all salmon netcage operation in British Columbia is approximately equivalent to the human sewage produced by a city of 500,000 people.
Unfortunately, the EAO‘s final recommendations do not employ the precautionary principle in any meaningful sense. It is clear that key information is lacking regarding two critical impacts associated with wastes, carbon loading and phytoplankton blooms. These information gaps prevented TAT from quantifying the magnitude of risk, which salmon farming represents to local ecosystems. The EAO recommends further study and research which, aside from being costly and slow to produce answers, cannot substitute for information that must be known now. Fallowing is mentioned as an option, but is not recommended as a mandatory and enforceable operational practice. Moreover, fallowing is treated as a remedial action to be implemented only when certain standards are breached, rather than as a preventative measure which would involve routine fallowing. Closed-containment, the necessary basis of any truly precautionary approach, is derogated to pilot project status with no firm commitment to implementation. Lastly, a comprehensive monitoring system with independant oversight and publicly accessible results is not included in the EAO’s recommendations.
Siting of Salmon Farms
The siting of salmon farms is directly related to the types of impacts and the magnitude of impacts the farms will have. Some serious limitations of the existing tenure approval process are that the existing process is not consistent with the precautionary principle, and does not provide local governments, First Nations and the public with a strong enough voice in siting decisions. Both the TAT report on siting and the final report from SAR recognizes these problems with the existing process. However on closer analysis SAR’s recommendations are not adequate to remedy them.
Given the current lack of comprehensive information on which to base siting decisions, the precautionary approach would suggest that the moratorium on new tenures continue pending the development of integrated coastal zone planning, scientifically based siting criteria, and comprehensive resource inventories. Instead the EAO recommends a fast track, interim planning process using essentially the same criteria as were applied prior to the moratorium.
Five conclusions are drawn from this review of the SAR’s treatment of the siting issue: (1) Consistent with the precautionary principle, the moratorium on new tenures should continue pending comprehensive coastal zone planning. (2) The Province should develop siting criteria which are scientifically based and provide minimum distances to promote clarity, consistency, and the precautionary approach in the application of the criteria. (3) Consistent with the user pay principle, the cost of gathering the required information to study comprehensively the appropriateness of each proposed open net pen site should be born by the proponent; however, the Province should consider seriously whether policies promoting investments in closed circulation technology might be more worthwhile. (4) The approval of any First Nation directly affected by a proposed site should be required for approval of the tenure. (5) The approval of local government should also be required before tenures are issued, and serious consideration should be given to reversing the restrictions placed on local governments’ zoning authority by the new Farm Practices Protection (Right to Farm) Act and its attendant amendments to the Municipal Act.
Escaped Farm Salmon
Escaped salmon is one of the most visible, and potentially devastating problems with the aquaculture industry in British Columbia. Both farmed Atlantic and Pacific pose risks to wild salmon when they escape from netpens. Overall, the basic concerns stem from escaped salmon’s potential impacts on the wild stocks of B.C. salmon. The wild salmon fishery is already in decline and reduced genetic fitness, spread of disease, increased competition, and spawning site disruption are dangers inherent when farmed salmon are escaping into the wild.
The Salmon Aquaculture Review, while realizing the scope of the problem, has failed to adequately address these risk. Their conclusions are based on inconclusive science which only addresses the dangers at current escape levels. By ignoring the lack of certainty in the science and using it as a guide when the large expansion of the aquaculture industry is a virtual certainty, the EAO has disregarded the precautionary principle and put the future of British Columbia’s wild salmon stocks at risk.
Farm and Wild Fish Health
The TAT report espouses a “proactive policy of disease prevention”. A reduction in risk is not a solution that can adequately protect wild fish populations and protect the marine ecosystem. The precautionary approach is not satisfied by the TAT or SAR recommendations. Problems regarding scientific uncertainty can not be solved just by writing more legislation. The SAR report is curious in that it is a product of the Environmental Assessment Office, yet it really doesn’t seem to focus on the environment and avoids considering alternatives to the open netcage operations. Wild salmon, the marine ecosystem and even human health are all at stake in the issue of aquaculture operations.
No recommendation, nor any regulation, can offer protection against diseases transmitted within a fish egg, as so many are. Research into fish disease is in its infancy and drugs effective to control diseases are in short supply. Strains of disease already resistant to two and three antibiotics are known to occur in B.C. fish populations. Therefore, only a strict prohibition on egg and live fish imports can be considered precautionary.
Interactions with Coastal Mammals and Other Species
Current salmon farm operational practices pose undesirable impacts and threats to marine mammals and other wildlife. The extent of the impacts and threat to local populations of marine mammals and other wildlife is largely unknown. The existing regulatory scheme is ineffective at protecting marine mammals and other wildlife from being killed, and preventing loss of habitat due to salmon farming operations. Wildlife is being killed because there are not adequate physical barriers to stop predation from occuring in the first place. The deficiency in the existing regulatory scheme is due to the lack of regulations with respect to the standards of operation and technologies required to prevent interactions between farmed salmon and local species.
SAR recommends implementing a system that regulates the standards of operation and technologies through the aquaculture operating licence on a site specific basis. SAR does not recommend general regulations to implement current proven predator prevention technologies, such as predator net systems, on an industry wide basis. To be effective, the proposed regulatory system must be monitored and enforced through site specific requirements in combination with general regulations. Research will have to be undertaken to establish acceptable standards of operation and technologies, along with establishing the effects of these ‘practices’ on local species. SAR does not adequately address the issue of how to monitor and enforce the proposed regulatory scheme.
Notwithstanding the above gaps in SAR recommendations, both government and industry would be required to invest large amounts of capital and labour to effectively implement the recommendations. Perhaps the possible costs of implementing the SAR recommendations, and ensuring compliance with them are sufficient justification for the government to require industry to move towards closed containment marine systems. A closed containment system would virtually eliminate interactions between farmed salmon and local species.
First Nations And the Salmon Aquaculture Review
In addition to the serious ecological concerns raised by salmon farming, the recent need for a Salmon Aquaculture Review (SAR) can also be traced to development of the law protecting aboriginal rights to traditional fisheries. There is now a real concern that many of the existing salmon aquaculture tenures are infringing on such aboriginal rights enshrined in s.35(1) of Constitution Act, 1982. In this context, affected First Nations have been active in making their voices heard during the SAR, though their participation did not include involvement in decision-making about recommendations.
The ecological concerns expressed during the SAR by non-aboriginal groups echoed the submissions made by Kwakiutl, Nuu-chah-nulth and other aboriginal groups. These First Nations also passionately voiced their unique and serious vulnerability to the risks associated with salmon farming which operates exclusively within their territories. Deprivation of a safe, traditional wild food diet, still clearly available to most coastal peoples until very recently, is considered a serious threat to the health and cultures of aboriginal people and communities. Affected First Nations thus collectively supported the continuation of the provincial moratorium on the salmon aquaculture industry until their concerns are satisfactorily addressed. Although the Environmental Assessment Office made many recommendations on the issues of concern to First Nations the standards, specificity and breadth of the recommendations are inadequate to ensure these concerns are met.
Last month’s Supreme Court of Canada decision in Delgamuukw v. British Columbia has profoundly advanced the law of aboriginal title and rights since the SAR’s completion. It will apply to salmon aquaculture tenures (and licenses) so far as the sites, previously thought to be on provincial Crown lands, are subject to claims of aboriginal title and rights. Development of the aquaculture industry in such areas will always require First Nation consultation, may require First Nation consent, and will likely require compensation to First Nations. Where future negotiations over these issues and the protection of aboriginal fisheries proves unsatisfactory to First Nations, legal recourse may include actions seeking a declaration of aboriginal rights (which would likely involve injunctions), judicial review of government approvals and even the common law torts of negligence, nuisance and trespass to lands.
Chapter 1: INTRODUCTION
The Salmon Aquaculture Review
In April 1995, the B.C. Government ordered a moratorium on the issuance of new salmon farm tenures and announced its plan to conduct a review of the salmon aquaculture industry. In July 1996, the Environmental Assessment Office (“EAO”) was assigned the responsibility of conducting the review pursuant to section 40 of the British Columbia Environmental Assessment Act. The review culminated in August 1997, with a five-volume final report published by the EAO, containing forty-nine recommendations.
Throughout the review, members of the public and other stakeholders were consulted and invited to make submissions to the Review Committee. As well, the EAO assembled a Technical Advisory Team (TAT) to prepare technical discussion papers on the key issues. TAT completed its own set of overall conclusions and 57 recommendations, many of which were incorporated in varying form into the EAO’s final recommendations.
This report of the Environmental Law Centre (“ELC”), evaluates the findings and recommendations of the EAO, and TAT, which largely informed the former. This report examines the same key issues examined by the SAR: Waste Discharges, Siting of Farms, Escaped Farm Salmon, Farm and Wild Fish Health, Interactions with Coastal Mammals and other Species, and First Nations concerns. This report does not attempt to analyze the review process itself, nor the terms of reference used in the review process. The purpose of this report is to assess the assessment. In other words, we hope to determine whether the findings and recommendations can support sustainable aquaculture in B.C. Specifically, we intend to ascertain whether the moratorium ought to be lifted given the EAO’s recommendations.
The Provincial Cabinet is expected to announce its response to the EAO’s recommendations, and its plan for salmon aquaculture within the next few months. This report of the ELC should assist the public in making their own, informed evaluation of the government’s chosen course of action.
The Salmon Aquaculture Industry
The history and background of the salmon aquaculture industry in B.C. are described in detail by numerous sources. We therefore refer reader’s, who may be unfamiliar with the state of the industry and its development, to two works which provide a comprehensive and somewhat contrasting overview of the industry. The first is entitled Net Loss, written by David Ellis, for the David Suzuki Foundation (Ellis, D., pp. 7 – 60). The second, is entitled Socio-economic Impacts of Existing Salmon Farming Operations in B.C., prepared by Marvin Shaffer and Associates Ltd., for the Salmon Aquaculture Review (EAO, pp. 13 – 28).
Chapter 2: WASTE DISCHARGES
By: Robert Cooper
Salmon farms directly discharge numerous forms of waste into the surrounding marine environment. The primary waste sources include uneaten feed, fish wastes (faeces or inorganic urea and ammonia), organic material accumulated on nets and then dislodged, anti-foulants, pesticides, morts, human sewage, and other solid wastes such as empty feed bags, ropes and floats. In open net cage systems, which account for most of the salmon farms operating in BC, there is no means to prevent wastes from passing through the net cages into the open ocean.
Dr. Brenda Burd authored the TAT paper on waste discharges and estimates that in British Columbia 15-20% of fish feed is uneaten and that an additional 20-28% of feed used is ultimately excreted in fish fecal matter (Burd, p. 9). Hence, between 35 and 48% of feed is discharged into the surrounding environment. The results of a European study infer that the 38 salmon farms in the Broughton Archipelago produce more than 3 to 7 times more waste than the entire population of Campbell River (Ellis, p. 70). The total quantity of waste produced by all salmon netcage operation in British Columbia is approximately equivalent to the human sewage produced by a city of 500,000 people.
Under British Columbia’s Waste Management Act and regulations, salmon farms are not required to obtain a waste management permit unless their annual dry-feed usage exceeds 630 tonnes. Consequently, only 11 of the approximately 80 – 149 farms in British Columbia, operate under a waste management permit. Anne Hillyer, author of the EAO report entitled, The Management and Regulatory Framework for Salmon Aquaculture in British Columbia, states that “few, if any salmon farms have been prosecuted” under the Waste Management Act (Hillyer, p. 75). If salmon farms were prosecuted or charged, it would be listed on the Environmental Charges and Penalties Report. A review of this report for the period of April 1, 1994 to March 31, 1997, reveals that not a single salmon farm has been charged or prosecuted in at least the last 3 years.
An obvious question is what effect these untreated wastes have on the environment. Perhaps, the most critical question is one of risk assessment. Policy-makers must consider many factors in developing regulatory structures, and it is of prime importance, since the degree of risk may determine the extent of regulation that is necessary and justified in the circumstances.
TAT’s overall summary conclusion states that salmon aquaculture “at current levels of production” presents a “low ecological and environmental risk to the province of British Columbia”, but admits that “significant adverse impacts” have occurred and that “information gaps and uncertainties respecting the effects of salmon aquaculture on aquatic ecosystems” remain. (TAT, p. 7).
In their opening statement on risk, TAT reveals a critical flaw in the SAR. The “current levels of production” referred to by TAT, have already been exceeded. Throughout the moratorium, levels of production at individual farms were increasing, since the moratorium applied to the granting of new tenures, not to changes in production levels (Burd, p. 61). More importantly, the results of the SAR are intended to assist Cabinet in deciding whether or not the moratorium ought to be lifted. An assessment of current risks cannot logically form the basis of a responsible decision as to whether the moratorium should be lifted. Once the moratorium is lifted, production will immediately increase and the degree of risk will be magnified.
Nonetheless, TAT concludes the risks at current (although now past), levels of production are “low”. If “low” risks are taken to mean the risks are insignificant, then we must question how such a conclusion can follow given the uncertainty and information gaps recognized by TAT, as well as the adverse impacts they have actually identified. If the reference to risks as “low” is used in a relative, consequential sense, in comparison to something like Global Warming, to suggest that it is only the future of wild stocks and local ecosystems that are at risk, rather than the global economy as we know it, than the conclusion is useless and grossly misleading. The more likely explanation for this obvious tension is that the complex and numerous issues dealt with by the individual TAT members simply defy such broad generalizations. Or, it may also be that TAT has made an inappropriately broad overall conclusion without attaching the weight they should to the many unsatisfactory findings and omissions. The uncertainty in the summary conclusion statement belies the uncertainty that exists throughout the entire TAT and SAR findings. Although TAT claims to deal with uncertainty in a “precautionary way”, it is necessary to understand exactly where the uncertainty exists and whether a precautionary approach has truly been taken to addressing this uncertainty.
Inevitably, proponents of an undertaking will downplay the risks involved, while opponents will emphasize or perhaps even exaggerate the potential risks in the interest of caution. An independant government review can fulfill the critical role of objectively assessing and quantifying risk. The SAR’s Terms of Reference, lists as an “Issue for Review”, to “identify and assess the risk of adverse effects of salmon farm waste discharge on the marine environment” (EAO1, p. 59). Whether or not SAR has adequately assessed this risk is the focus of the following section.
It is the position of this paper that the TAT report on waste discharges does not adequately assess the risks associated with wastes. Instead, the TAT report describes the potential environmental impacts and regularly refers to the uncertainty and lack of scientific information that is required to make a proper risk assessment. One must then ask whether the proposed recommendations for regulating waste discharge by salmon farms give due attention to this uncertainty and exhibit a diligent attempt to act cautiously in the face of yet to be quantified risks, at least until such time as they may be more fully understood. To explore this question, two major waste impacts are discussed below: carbon loading and phytoplankton production.
Organic material, contained in uneaten feed and faeces, passes through the open netcage and into the surrounding marine environment, and accumulates on the ocean bottom in what is referred to as the benthos. As a result of this accumulation, benthic sediments become enriched with excess carbon, causing oxygen demand to increase and oxygen levels to decline. This oxygen depleting condition is known as anoxia and a number of impacts may flow from these changes in the benthic community. First, animal and plant species diversity and abundance may decline due to stress, smothering and oxygen starvation. In extreme cases, anaerobic species which do not require oxygen will dominate the community and may produce hydrogen sulfide gases, which is referred to as outgassing. According to TAT, outgassing is “unhealthy for most biota associated with the sediments and the farmed fish above” (TAT, p. 12).
TAT states that anoxia can develop when carbon loading is greater than 4 g C / m2 / day. This figure was arrived at based on models and empirical studies from other jurisdictions. TAT estimates the rate of carbon loading among salmon farms in British Columbia to be a maximum of between
The first striking concern is that the data used was taken from only 20 farms, not even 20% of the existing tenures, and is then presumed to be representative of all farms in order to arrive at the conclusion that only 25% of salmon farms in British Columbia are exceeding the critical load. There is no reason to believe these particular 20 farms are actually representative of the carbon loading that is occurring at the other 80 or so salmon farms in British Columbia. Nor is there any reason to believe that such an estimate is not already outdated, as operators continue to increase production levels even during the moratorium, making previous estimates of carbon output undervalued. The future will undoubtedly push the waste output even higher. Furthermore, it is not clear whether the model used, takes into account the carbon material released during net cleaning. As well, there are many site-specific variables which should be taken into consideration, to assess their impact on the rates of sedimentation in that area. Whether the modeling relied upon is able to do this is dubious and TAT admits that the model must be refined. However, there is little assurance that the necessary refinements will be forthcoming when TAT states that the dynamics of sedimentation are “not fully understood”, even though the variables which affect sedimentation are better known (TAT, p. 12).
In addition to the uncertainty as to the benthos’ ability to assimilate accumulating organic matter, there is no discussion of the impact alterations in benthic species composition and health will have on bottom feeding fish and other biota. There exists no studies of species found in the vicinity of salmon farms before and after the farm is in operation. Similarly, one would expect a thorough investigation of the occurrences of outgassing, given the gravity of concerns associated with it, before concluding the risks associated with waste discharge are low. TAT does not evaluate past occurrences of outgassing, and probably will not be able to do this, since only the industry would have this information and they would be unlikely to volunteer it.
TAT’s underlying message is that the natural environment will simply assimilate the excess carbon. But what if TAT is wrong about the levels of carbon loading at which the benthos’ assimilative capacity is exceeded. The primitive modeling used and the minimal available data, which is also of questionable veracity, suggests there is great room for error in TAT’s determination of the critical carbon loading measure and the current loading rates of farms in BC.
Wastes in the form of dissolved phosphorous and nitrogen can stimulate the production of phytoplankton which is in TAT’s own words a major concern to fish farmers (TAT, p. 13), and is also considered capable of devastating wild fish populations. TAT holds that dissolved nitrogen and phosphorous is considered negligible in a relative comparison to other nutrient inputs, and that blooms are unlikely unless there are slow currents. However, TAT does recognize that phytoplankton cysts in sediments may act as seeds for blooms but that this possibility has not been studied to date (TAT, p. 13).
In Net Loss, David Ellis reports that most salmon farms in the Sechelt area vacated the area mainly because of phytoplankton blooms. In response to the hazards of plankton blooms, insurers raised rates for salmon farms in the area (Weber, p. 19). Furthermore, the losses suffered by International Aqua Foods Ltd. from a plankton bloom outside the Sechelt area were so severe that they were a major annotation on the companies financial report. As well, in two instances netcage operators towed their farms to locations unaffected by the blooms, and the government simply granted them new tenures (Ellis, p. 70). If the risks of blooms were understood, why would salmon farmers choose to locate their operations in areas where blooms occurred. The only answer is that they were unable to foresee or prevent the risk. The farm operators had no reason to think the blooms which did occur could occur and they had no way of detecting the growth of the blooms before they were fully developed. Even more frightening, they had no way to mitigate the harmful impact of the bloom once it did occur. The only alternative was vacating the tenure, which stresses their stock and puts them at further risk. Although blooms are more frequent in Strait of Georgia, they can happen anywhere, and thus, all areas of BC coast are exposed to this risk (Ellis, p. 69).
Phytoplankton blooms fact have occurred in connection with salmon farming. TAT’s conclusion that the relative nitrogen contribution of salmon farms is “negligible compared to other nutrient inputs” indicates the risks have not been fully assessed. It also begs the question of whether the relatively negligible contribution of nitrogen owed to salmon farms has the potential to sufficiently alter nutrient levels at specific sites located in otherwise pristine environments, thereby stimulating phytoplankton growth.
One must also be mindful of the context from which TAT drew its conclusion. The analysis adopted by TAT looks at the total nitrogen input from salmon farms into the Georgia Strait and compares it to all the other sources, natural and non-natural (Burd, pp. 48-49). The finding that sewage from Victoria, Vancouver, and Seattle makes larger contribution on this broad-scale should not come as a surprise to anyone. However, nor should it convince anyone that local risks do not exist. After all, not all farms are located near sewage output pipes, and in fact, only a very unwise salmon farmer would choose to locate in such an area. Thus, TAT’s broad-scale analysis confirms only one uninformative notion that does not begin to address local impacts: the risk of the entire Georgia Strait being devastated by a plankton bloom is remote, and the possibility of such an event being caused solely by salmon farming is even more remote.
TAT ignores local impacts and states that the possibility of farms elevating nutrient levels sufficiently to cause locally-enhanced production “depends on the production of the individual farms, local current patterns around the farm and the exchange or flushing rates of the receiving farms” (Burd, p. 49). Basically, TAT is unable to make a definitive assessment of the potential for local impacts due to phytoplankton blooms. TAT is limited by the availability of information. The Consultative Group on Biological Diversity reports that “even low concentrations of some kinds of algae can trigger the production of mucus that covers the gills of salmon, ultimately causing infections, hemorrhaging of gills and suffocation” (Weber, p. 19). Nothing in the 100-page TAT report on wastes provides any assurance that salmon farming does not contribute to these or other adverse impacts.
Fallowing is an often cited mitigation measure believed to reverse the adverse impacts of salmon aquaculture effluent by allowing a tenure to lie dormant and presumably return to its ambient state through natural processes. Do salmon farmers in British Columbia fallow? Currently in British Columbia, there is no legal requirement to fallow and thus unsurprisingly, few farmers fallow (Ellis estimates that at best 15% of sites fallow), and even fewer sites fallow properly, despite the claims of some farmers that they consider it a desirable practice. While fallowing presents obvious advantages to salmon farmers by enabling them to maintain some degree of water quality, reduce the risk of disease, and achieve optimal grow-out conditions, short-term economic pressures force salmon farm operators to maximize the use of each tenure. Furthermore, farmers have the option to move to another area within their tenure or to move the tenure all together if they misjudge the assimilative capacity of the local environment. In short, the advantages of fallowing are not cost-effective to salmon farmers since the costs of not fallowing are presently externalized and borne by the public, not the salmon farm. Thus, there is no real incentive to fallow and no enforceable guidelines on how to do it effectively.
Fallowing does have its merits in theory. However, in order for fallowing to be effective in practice, key information must be obtained. If we are unable to determine at what point fallowing is required, how long fallowing periods should be, and under what circumstances it will or will not be possible for a site to naturally return to its ambient state, fallowing will not produce the environmental benefits it is expected to provide. While some have estimated that effective fallowing may take up to 5 years (Ellis, p. 61), TAT declines to offer any estimate whatsoever. Instead, TAT expressly states there are “no clear answers” regarding how long a site takes to recover or the “persistence and effects of foreign elements in sediments” (Burd, p. 73). TAT also states that such questions can not be answered until fallowing is more widely practiced. Thus, while the precautionary approach demands that fallowing be mandatory, it cannot be relied on to mitigate the adverse impacts caused by salmon aquaculture until we have definitive answers as to when, and for how long sites must be left fallow to ensure that all adverse changes would be reversed.
TAT’s minimal incorporation of fallowing in its recommendations demonstrates clear disregard for, or misunderstanding of, the precautionary approach. In Recommendation 1, TAT proposes that fallowing be one of a number of possible remedial orders for farms that are discovered to be exceeding prescribed standards. To facilitate fallowing, TAT recommends that sites which are required to fallow be allowed to do so within the same tenure, rather than the more appropriate and precautionary approach of allowing the entire tenure to fallow (TAT, p. 36). This would reduce the risk of the new site being re-contaminated due to its proximity to the old site. Absolutely no indications or guidelines are given in TAT’s recommendations as to what time periods are necessary for effective fallowing. In fact, TAT does not even include fallowing as a measure which ought to be included in its proposed “code of practices” for salmon aquaculture, intended to prevent and mitigate waste impacts.
In its final recommendations, the EAO continues TAT’s recommendation to develop a code of practices, but similarly does not specify a requirement to fallow. However, the recommendations are sufficiently vague that they could be construed to include fallowing in the reference to developing “measures” in general, to prevent wastes (EAO Recommendation 28). The EAO comes a little closer to directly addressing fallowing in Recommendation 24, which calls for a new regulation requiring “sediment standards return to ambient or near ambient conditions (some enrichment) prior to restocking a site with fish”. The EAO seems to imply that sites should be fallowed, but curiously refrains from stating it directly, and therefore avoids recommending strict fallowing requirements.
Thus, fallowing has the potential to mitigate adverse waste impacts, but only if data, currently not available, is obtained. It is important to remember that the underlying assumption of fallowing is that sediments, biota, and other life forms under salmon farms can recover from degradation experienced from salmon waste discharges. There must be reliable studies indicating precisely when and how to fallow and for how long, and also whether there are losses which may still remain even after fallowing. Otherwise, any attempts to fallow may not necessarily achieve the objective behind fallowing, which is to allow the environment to naturally return to its ambient condition. As well, when required, fallowing must be mandatory and legally enforceable, and not an optional remedial action.
Closed Containment Systems
The preceding examination illustrates that TAT and SAR are unable to adequately quantify the risks associated with the untreated wastes routinely discharged by salmon farms. Until such assessments can be made with reasonable certainty, the precautionary approach must prevail. In the context of wastes, caution demands eliminating the waste source itself. Otherwise ecosystems and species will be compromised as harmful plankton blooms, oxygen depletion, and the other known and unknown effects of salmon farming remain an ecological threat.
The only truly precautionary alternative, and the only measure that can ensure the sustainability of salmon farming, is to restrict salmon farming to closed-containment systems. Closed-containment systems eliminate the source of pollution and do not rest on the hollow hope that salmon aquaculture wastes will be assimilated by the environment with no significant adverse impact. Although closed-containment systems are not a panacea, and other preventative measures must also be in place, they do offer enormous environmental benefits since they allow wastes to be collected and treated before being released into the environment. The public will also benefit because the likelihood of government compensation for disease ridden stock and site remediation will be reduced considerably. Closed-containment systems offer industrial benefits as well, including lower feed costs, less risk of disease, and the ability to manipulate and control grow-out conditions. Nonetheless, doubts exist as to their economic viability.
The TAT paper on wastes did not consider the possibility of closed-containment systems. Thus, there is no quantitative description of the environmental impacts created by open versus closed marine systems. However, the EAO referred to some of the qualitative environmental benefits of closed systems, such as the collection and treatment of wastes, controllable growing conditions, and virtual elimination of predation and escapes (EAO, p. 144). The EAO speculates that coastal user conflicts will still remain, although one would think a more environmentally responsible operation would not attract the same contempt from other coastal users, as do open-net cage systems. As well, closed systems will require large quantities of water and energy. Finally, the technology to treat dissolved oragnics and metabolic wastes is undeveloped, which suggests closed-containment systems can offer even greater environmental benefit than currently realized.
The technical and commercial feasibility of closed-containment systems is contested. The EAO adopted the findings of Kent Gustavson, author of the EAO’s report on closed circulating systems, and stated that such systems are becoming feasible. In fact, two such systems are currently operating in Puget Sound, Washington, and near Nanaimo, British Columbia. Gustavson also concluded that the commercial feasibility of closed systems has not been demonstrated on this coast. However, in its final report the EAO stated categorically, that “commercial feasibility has not yet been demonstrated” (EAO, p. 144). Nonetheless, commercial feasibility is affirmed by others. Future SEA Farms, developers of the closed-system operating near Nanaimo, claim the significant capital investment required is offset by increased stocking densities, enhanced growth rates, and improved fish health, all made possible by closed-systems. Moreover, cost-prohibitive arguments externalize costs to the environment to the economic detriment of environmentally responsible practices. If the aquaculture industry was forced to bear the costs its husbandry practices impose on the environment, rather than the public, closed containment systems would likely become commercially feasible. Strict regulations respecting waste discharge is one way to shift these costs to industry.
Monitoring and Enforcement
In 1995, MELP suspended its monitoring program pending further review. Thus, there is very minimal reporting of environmental effects by salmon farms. In its 29th Recommendation, the EAO states that farmers should monitor their sites more frequently. The EAO also recommends monitoring reports should be routinely assessed. However, there is no suggestion that the problems experienced with the suspended monitoring program will be resolved. There must be independant verification of data, and the results must be available to the public. Neither of these conditions were advocated in the EAO’s recommendations.
Unfortunately, the EAO’s final recommendations do not employ the precautionary principle in any meaningful sense. It is clear that key information is lacking regarding two critical impacts associated with wastes: carbon loading and phytoplankton blooms. These information gaps prevented TAT from quantifying the magnitude of risk which salmon farming represents to local ecosystems. The EAO recommends further study and research which, aside from being costly and slow to produce answers, cannot substitute for information that must be known now. Fallowing is mentioned as an option, but is not recommended as a mandatory and enforceable operational practice. Moreover, fallowing is treated as a remedial action to be implemented only when certain standards are breached, rather than as a preventative measure which would involve routine fallowing. Closed-containment, the necessary basis of any truly precautionary approach, is derogated to pilot project status with no firm commitment to implementation. Finally, a comprehensive monitoring system with independent oversight and publicly accessible results is not included in the EAO’s recommendations.
Chapter 3: SALMON FARM SITING
By: Emily Walter
The siting of salmon farms is directly related to the types of impacts and the magnitude of impacts the farms will have. Ideally, salmon farms would operate using operational practices and in locations where negative effects would be minimized while the economic viability of the operations is maintained.
This ideal has so far been elusive for an industry which has weathered heavy criticism for its impacts on the environment and other resource users. In the years leading up to the current moratorium, many farms were sited in locations which created conflict, for example, in locations unacceptable to First Nations, areas locally zoned not to allow fish farming, locations with negative effects on tourism, and sites resulting in significant negative impacts on other species.
In its recommendations to the Salmon Aquaculture Review, the Technical Advisory Team (TAT) recognized this elusiveness: “The ideal management framework would involve integrated coastal plans identifying areas which are suitable and acceptable for salmon farms, and performance-based standards which would require farms to minimize impacts. Unfortunately, neither of those options is available in the short term,” (TAT Findings and Recommendations Report). Indeed, some critics of the industry have questioned whether this goal is achievable even in the long term without changes to close circulation technologies, because the nature of open net cages is that inputs and outputs are extremely difficult to regulate (K. Wristen pers. comm.; see also D. Ellis, Net Loss).
While the public submissions and reports included in SAR, including the TAT Report on Issue E: Siting (henceforth “TAT report on siting”), produced lengthy documentation of the kinds of adverse impacts and types of problems that ought to be considered to make informed siting decisions, the current developmental state of coastal zone planning, the lack of baseline information and the uncertainties attendant to the problem of cumulative effects have prevented — and will continue to prevent in at least the short term — the comprehensive analysis needed to make informed siting decisions.
The challenges posed by incomplete baseline information, scientific uncertainty about the effects of human impacts on ecosystems, and multiple users competing for interrelated resources are common to most resource decision-making. The guiding principles of sustainability and the precautionary principle have emerged as part of the international response to these challenges (for example, the Rio Declaration). The Government of British Columbia has also articulated its commitment to these guiding principles in the Provincial Land Use Charter and Sustainable Environment Charter. The Provincial Land Use Charter includes the following commitments:
- A healthy environment is the foundation upon which a sound economy and society depend. The essential role that ecosystems play in supporting our society establishes an environmental imperative that must be respected in all land, resource and economic decisions. Our priority must be to maintain natural systems for present and future generations.
- When making land and resource decisions, the Province shall exercise caution and special concern for natural values, recognizing that human understanding of nature is incomplete.
- The Province shall ensure that environmental and social costs are accounted for in land, resource use and economic decisions.
The Salmon Aquaculture Review was intended to provide guidance on these complex issues to the Province’s aquaculture policy makers. The Terms of Reference charged the EAO with conducting a review of the adequacy of current methods and processes used by government to site salmon farms.
Existing Site Approval Process
Under the existing approval process, a prospective salmon farmer applies to BC Lands for a 10 year license or, more rarely, a 30 year lease for a proposed site on Crown land. An aquaculture development plan setting out the nature and scope of the proposal, site capability, and other relevant coastal users and resource values must be included with the application for tenure. BC Lands refers the applications to the Ministry of Agriculture, Fisheries and Foods (MAFF), as well as to other relevant federal and provincial agencies, local governments, First Nations and sometimes to other interested parties. The applicant must advertise their intent to apply for a tenure, and the public may register comments with the Ministry of Environment, Lands and Parks (MELP). Siting criteria are set out in the BC lands Aquaculture Policy. Since the imposition of the moratorium on new tenures, a Fish Farm Review Committee, composed of representatives of federal and provincial government who participate in the referral process, has been established to coordinate tenure replacement applications and licensing decisions on Vancouver Island.
MELP’s decision whether to issue an aquaculture tenure for a proposed site is discretionary. The referral process is advisory, and siting criteria used by MELP are, with a few exceptions such as requirements under the Navigable Waters Protection Act not to impede navigation, in the form of guidelines, and as such are not legally binding.
Some serious limitations of the existing tenure approval process are:
I. The existing process is not consistent with the precautionary principle
Two examples of ways in which the approval process as it existed prior to the moratorium on new tenures did not reflect the precautionary approach are: First, evaluation of applications was done using incomplete and sometimes inaccurate information (minutes to Review Committee Working Session #4, and A. Hillyer at p. 27) on such critical matters as conflicts with other resources, effects on sensitive habitat, and aboriginal rights infringement, preventing adequate impact and risk assessment. Second, in the absence of regional planning, the individualized nature of site by site evaluation did not allow for an integrated, regional approach to management and exacerbated the already difficult task of assessing the potential cumulative effects of multiple farms.
II. The existing process does not provide local governments, First Nations and the public with a strong enough voice in siting decisions
Opportunities for participation by First Nations, local governments and the public in tenure decisions have not been adequate, resulting in dissatisfaction and conflict. With respect to First Nations, some farms have been sited in locations with unacceptable negative impacts, for example, immediately above or adjacent to fishing areas and shellfish beds traditionally harvested by First Nations. With respect to local governments, it appears that referral comments from representatives of local governments appear have not always been taken fully into consideration (J. Abram, Submission to SAR), and local planning initiatives which designate areas as not suitable for aquaculture were not given appropriate weight in some cases. For example, farms have been sited in areas designated “No Opportunity Zones” by the Coastal Resource Interest Studies (Hillyer, A., p. 24).
Both the TAT report on siting and the EAO’s final report recognize these problems with the existing process. However, the recommendations arising from SAR do not go far enough to remedy them.
Analysis of SAR’s recommendations
1) SAR recommendations do not reflect the precautionary principle
The definition of the precautionary principle adopted by Premier Glen Clark’s government in the Sustainable Environment Charter is:
- The onus of proof should be on parties proposing actions which could cause serious or irreversible damage to prove beyond a reasonable doubt that no damage will be caused.
By this principle, the proponent of a salmon farm would have to show, for example, that shellfish traditionally harvested by First Nations will not be contaminated, that wild salmon stocks will not be damaged by disease or genetic mixing, and that benthic species will not be seriously damaged.
This burden is often difficult to meet given that the information needed to evaluate comprehensively the impacts of a proposed salmon farm is not always available. In recognition of this fact, SAR recommends continued improvement of coastal resource inventory mapping to support integrated coastal zone planning and informed consideration of site applications (Recommendation #6).
Given the current lack of comprehensive information on which to meet the precautionary burden of proof, the precautionary approach would suggest that the moratorium on new tenures continue pending comprehensive coastal zone planning. Instead the EAO recommends a fast track interim planning process to identify sites considered suitable for aquaculture (Recommendation #3) and recommends the use of siting criteria (Recommendation #4) which are no more scientifically based and are as unsupported by comprehensive resource inventories as the existing criteria under the BC Lands Aquaculture Policy.
Similarly, while SAR Recommendation #5 appears to place the precautionary burden of proof on tenure applicants by recommending that proponents supply the technical information necessary to evaluate tenure applications, in fact the recommended guidelines for what information a proponent would have to prepare only go so far as to require the proponent to explain how SAR’s proposed siting criteria would be met. The “user pay” aspect of this recommendation is laudable, but the proposed siting criteria do not measure up to the burden of proof required by the precautionary principle.
Two key areas in which the siting criteria proposed by SAR do not fundamentally improve on existing siting criteria under the BC Lands Aquaculture Policy (BCLAP) are criteria relating to negative impacts for First Nations and risks to wild salmon. For example:
SAR’s guideline for the minimum distance a farm should be from the mouth of an anadromous fish stream is the same as it was under the BCLAP: 1 km. This number, admitted to be arbitrary by the author of the TAT report on siting (minutes to Review Committee Working Session #4), is less than the Department of Fisheries and Oceans’ (DFO) recommended distance, which is 3 km from major anadromous fish streams. Looking to other jurisdictions, Norway does not allow farms within 20 km of significant salmon bearing streams; similarly, on the east coast of the US, preferred sites for salmon farms are at least 20 km from watersheds managed for Atlantic salmon (Sierra Legal Defense Fund, at p. 18). Alaska, with perhaps the most similar coastal ecosystems to British Columbia, does not allow finfish farming at all, considering it to be too great a risk to its valuable wild fishery resources.
Neither SAR nor BCLAP specifically restrict siting farms on wild salmon migration routes, despite the risks posed by siting farms where interactions with wild salmon are a certainty.
SAR’s recommended criteria with respect to shellfish beds do not ensure adequate buffers. The BCLAP guideline is that farms should not be closer than 125 m from existing shellfish leases or wild shellfish stocks considered important by MAFF, MELP and DFO. Despite evidence presented during SAR confirming that uptake of contaminants can occur at 300 m (M.Sc. Thesis, T. Jones, as cited in the Nuu-chah-nulth submission to SAR), the recommended siting guideline is that farms should be allowed up to 300 m from inter-tidal shellfish beds that are exposed to water flow from a salmon farm and which have regular or traditional use for First Nations, recreational or commercial fisheries. Moreover, for all other shellfish beds, including commercial shellfish growing operations, SAR recommends that the 125 m distance should remain in effect.
Approval by First Nations affected by a proposed site is not required for tenure approval. Rather, the arbitrary guideline that farms should not be sited within 1 km of an Indian Reserve is proposed, a guideline which does not insure that resources First Nations rely on will not be negatively impacted.
In summary, SAR Recommendations #3 and #4 advocate an interim process for site selection pending comprehensive coastal zone planning. This interim process includes using criteria which do not reflect the precautionary principle. In the absence of scientifically based criteria, comprehensive inventories, accurate baseline information and integrated coastal zone planning, the justification for this fast track approach is missing. The clear alternative is for the moratorium to remain in place until comprehensive planning can occur.
The Technical Advisory Team concluded that “one of the primary problems with siting decision-making is that the criteria and rationale for decisions have been unclear,” (TAT Findings and Recommendations Report). Part of TAT’s response to this was to recommend the adoption of minimum distance criteria as enforceable standards. SAR chose not to specify minimum distances in many of the recommended siting criteria, and to leave the siting criteria as discretionary guidelines. For example, the recommended criterion with respect to sensitive fish habitat is that salmon farms should be located “an appropriate distance” from such areas. For clarity, consistency in application, administrative fairness, and, as TAT notes, as a reflection of the need to adopt a precautionary approach (i.e. a precautionary buffer) in the face of uncertainty, the Province should work toward more specific and scientifically based siting criteria.
2) SAR recommendations do not provide local government, First Nations and the public with a strong enough voice in siting decisions
While SAR discusses the need for local input on siting decisions, the recommended role for local government and First Nations remains advisory. SAR recommends that membership on Fish Farm Review Committees be limited to representatives of federal and provincial government, and that local government and First Nations in whose traditional territory the proposed site lies be invited to participate (SAR Recommendation #1). The vehicle recommended by SAR for public input is a local advisory committee, with existing local committees such as LRMP Table subcommittees, Local Round Tables, Community Resource Boards, or Advisory Planning Commissions serving this function as appropriate (SAR Recommendation #7).
This advisory role for local government, First Nations and public interest groups is not significantly different from the existing referral process and therefore cannot be expected to produce significantly less conflict. In its report to SAR on siting, TAT condemned the existing referral process, saying it is “not a process which lends itself to consensus-building or conflict resolution.” (TAT Report on siting, p. 7).
As noted previously, submissions to SAR regarding the role of local government reflect a concern that referral comments have not always been appropriately taken into account. The only other significant control local governments have is through zoning authority, a prerogative which has been exercised by several regional districts (Hillyer, A., p. 29-33). Like the existing BCLAP, SAR’s proposed siting criteria include consistency with local land use plans where such plans are in place. However, the presence of this guideline in BCLAP did not ensure that farms were not sited in areas designated “No Opportunity” in the Coastal Resource Interest Studies. The inclusion of aquaculture in the Farm Practices Protection (Right to Farm) Act (RSBC 1996, c. 131, “FPP Act”) undermines this apparent commitment to local planning initiatives. The FPP Act ñ which came into force April 1, 1997 ñ and its attendant amendments to the Municipal Act (RSBC 1996, c. 323), actually diminish the zoning authority of local governments, regional districts and Islands Trust committees with respect to aquaculture in two ways:
First, farms operating under a valid license, using normal farm practices and in compliance with other provincial statutes are insulated from local bylaws related to noise, odours, unsightly premises or the discharge of firearms. The common law right to sue in nuisance is similarly abrogated. Instead, the Farm Practices Board is established by the FPP Act to hear complaints, but relief is only available with respect to practices which are not considered normal farm practices.
Second, MAFF may establish standards to guide local government in the preparation of bylaws. If the provincial Cabinet specifically designates a local government council, regional district board, or local trust committee, new bylaws with respect to salmon farms that the local body may wish to pass restricting farm uses will be subject to the permission of the Minister of Agriculture, Fisheries and Foods. If a local body is thus designated by Cabinet, existing otherwise valid bylaws must be reviewed for consistency with standards established by the Minister, and may be amended without a public hearing.
Finally, as the concerns of First Nations are addressed in another section of this report, comments here will be limited. However, while submissions to SAR made evident the serious burdens the salmon farming industry has placed on First Nations, the opposition First Nations have expressed to the expansion of the industry in their traditional territories without their consent appears to not have been fully answered by the SAR recommendations. A straight forward response would be to make it impossible for tenures to be issued which are opposed by First Nations who will be directly affected.
Consistent with the precautionary principle, the moratorium on new tenures should continue pending comprehensive coastal zone planning.
As reflected in TAT’s recommendations that minimum distance criteria be adopted as enforceable standards, the Province should work toward more specific and scientifically based siting criteria to promote clarity, consistency, and precaution.
Consistent with the user pay principle, if the moratorium is lifted the cost of gathering the required information to study comprehensively the appropriateness of each proposed open net pen site should be born by the proponent. However, the Province should consider seriously whether policies promoting investments in closed circulation technology might be more worthwhile.
The approval of any First Nation directly affected by a proposed site should be required for approval of the tenure.
The approval of the appropriate local government should be required for approval of a proposed site, and serious consideration should be given to reversing the changes to local government zoning authority with respect to aquaculture brought about by the Farm Practices Protection (Right to Farm) Act and its attendant Municipal Act amendments.
Chapter 4: ESCAPED FARM SALMON
By: Shane Smith and Patrick Donnelly
There are a number of reasons why salmon escape from netpens. Large scale escapes often occur due to storms and vandalism, as well as accidents that occur during transportation of smolts. Escapes can also occur due to predators, improper net upkeep and other avoidable human errors. Since 1986, in British Columbia, over 1 million salmon have been reported lost due to escapes. This does not represent all of the salmon that have actually escaped though. Many fish are lost due to chronic small scale escapes known as leakage. Leakage goes mostly unreported, in part because it is impossible to verify how many fish have escaped, and also because it is not worthwhile for operators of farms to make insurance claims for a small number of escaped fish. The Technical Advisory Team estimates that the number of unreported escaped fish may equal the number of reported escapes. This means that upwards of two million fish have escaped into BC waters since 1986.
There are a concerns with escaped fish in each of the countries that are involved in aquaculture. Norway, Ireland, Chile and Argentina all have large numbers of escaped fish in their coastal waters. Norway, in particular, provides an excellent example of what can happen when fears are realized. In one case disease that spread from farmed salmon to wild salmon led to $100 million in total damages (Ellis 180).
Closer to home, in 1996, there was an escape of 100 000 farmed salmon in Washington State. In New Brunswick, it has been reported that up to 90% of salmon in the Magaguadavic River escaped from salmon farms.(Goldburg & Triplett 146) While, escapes in BC in the past few years have been reduced considerably, these events remind us that large scale escapes can still occur from netpens without any warning.
Genetic and Ecological Concerns
Atlantic and Pacific salmon are both farmed and escaping in British Columbia, and the risks associated with each are different. The potential problems that are a result of escaping Atlantic salmon are as follows:
- Genetic impacts via Hybridization — the fear here is that wild Pacific and escaped Atlantic salmon will cross-breed – this risk was assessed by the TAT to be “highly improbable.”
- Predation and Competition — the concern is that escaped Atlantics will feed on wild Pacific salmon as well as increase the competition that exists for food supplies. TAT concluded that competition is not considered a threat to wild populations, but they acknowledged that localized competition could occur with high levels of salmon escapes.
- Disruption of Spawning Sites — this risk results from the fact that Atlantics spawn later, and thus could disrupt eggs of the wild Pacific salmon. Also, farmed Atlantics mature faster and pose a competitive disadvantage for juvenile Pacifics.
- Disease Transmission to Wild Stocks — in general, farmed salmon are more suceptible to disease than wild stocks. A further concern is the fact that Atlantic salmon are “exotic” species to B.C. and there is the possibility that escaped fish could spread new diseases to which wild stocks may have very little immunity. This concern is addressed in the Fish Health analysis.
- Colonization in B.C. — there is a threat that large numbers of Atlantics could start reproducing along the BC coast. Colonization could have serious impacts on native populations, including increased competition, disruption of native stocks spawning sites, and disease transmission mentioned above. TAT noted that earlier this century, there were attempts made to stock BC streams with Atlantic salmon. These attempts were unsuccessful, and thus TAT concluded that the risk of colonization was low.
The risks associated with the escape of farmed Pacific salmon are:
- Interbreeding with Wild Stocks — Each of the over 5000 salmon stocks in BC is genetically diverse. This diversity enables the salmon to return to the streams in which they were born when they spawn. The concern with possible interbreeding between farmed and wild Pacifics is that it could lead to altered genetics and thus reduced reproductive fitness of the wild stocks. According to TAT, spawning between wild and farmed Pacifics is highly probable, yet they noted that the effects regarding possible reduced genetic diversity was difficult to predict. TAT concluded that the risk of genetic damage to wild stocks is potentially high if large numbers of farm Pacific salmon escape, as occurred in 1989 to 1991, and if successful interbreeding occurs over a number of years.
- Predation and Competition – the risk here is the same as mentioned for escaped Atlantic salmon although the spawning disruptions are not necessarily present.
- Disease Transmission – this is the same problem as with escaped Atlantics, although Pacifics are not an exotic species.
Assessment of TAT’s Conclusions
TAT’s general conclusion was that escaped fish posed a low risk to wild stocks. It must be remembered though that TAT had very limited amounts of scientific data upon which to base their conclusions. It is important to note that none of the evidence was conclusive, and while the risks were judged to be low, these risks still remain. More importantly, TAT’s conclusions were based on current levels of production in British Columbia. The TAT report did not consider the six to tenfold increase that is expected to occur in the aquaculture industry once the existing moratorium is lifted. Taking into account such a large increase, it is easy to see that far more salmon will escape in the future, and subsequently genetic and ecological risks may be far higher than stated in the TAT report. Therefore, the BC government should not use this report to justify the granting of new aquaculture tenures in BC waters. Finally, we must remember the precautionary principal. It seems clear that the SAR did not use this as their guiding principle. They used the absence of definitive scientific evidence to justify recommending the continuation of current aquaculture practices in BC with no real changes, other than a vague committment to reduce escapes.
Shortcomings in SAR’s Recommendations
In Recommendation 11 of the SAR, it is advocated that the Government should continue to allow both Atlantic and Pacific salmon to be farmed in marine netcages. This is a surprising, and illogical, conclusion, even when leaving aside the fact that many feel the risks of escaped Atlantic salmon are highly understated in the TAT report. As mentioned earlier, escaped Atlantic and Pacific salmon each pose unique risks to the environment. For Atlantics it is hybridization, displacement of native species and colonization. For Pacifics it is interbreeding, causing possible genetic dilution. By simply choosing to allow only one of either Atlantic or Pacific salmon to be farmed in British Columbia one area of environmental risks would be automatically eliminated. SAR also recommended that there should be a prohibition on farms raising Pacific salmon from being located near streams with sensitive wild stocks. However, there is no criteria suggested to determine what is meant by sensitive stocks. Surely, all salmon in British Columbia must be considered ‘sensitive’ to threats to their genetic integrity, habitat, food supply and spawning grounds.
TAT recommends a move to all female, or non-reproductive Atlantic Salmon, to be phased in over 8 years. SAR did not adopt this recommendation, instead they only recommended continued research. This seems logical in light of TAT’s conclusion that the possibility of colonization by Atlantic Salmon was low-risk. However, the Sierra Legal Defence Fund recently uncovered evidence that escaped Atlantic Salmon were reproducing in some Chilean rivers.(EAO Vol. 1 Appendix 1, p.55) Another notable point regarding TAT’s conclusion that colonization possibilities by Atlantic salmon were low is that the conclusion was based on earlier, unsuccessful attempts to stock BC rivers with Atlantic salmon. In those instances the fish used were smolts. Atlantics that escape from netpens in BC may be fully or mostly grown, so they will likely have a better chance of successfully colonizing. Also, since there are biological concerns surrounding escaped Pacific salmon as well, the government should consider requiring that non-reproductive Pacific salmon be raised too.
It should be noted however, that the success of sterilization and all female salmon programs is far from certain. Such biological solutions to escape prevention are highly complex. A better approach would be a recommendation for continued research on developing more effective escape prevention technology.
SAR recommends continued development of techniques and methods which will prevent salmon escapes. This is admirable, but there is already a method of containment which is potentially 100% effective against salmon escapes. The use of closed containment systems in the salmon aquaculture industry to replace netpens has been recommended by many groups, including the David Suzuki Foundation. In terms of escaped salmon, closed containment systems could eliminate the problem entirely. Nonetheless, the use of closed containment as a means to prevent salmon escapes was not given serious consideration. While there are valid economic concerns with closed containment, the Sierra Legal Defence Fund notes that these concerns would in part be reduced by the fact that there would be no economic losses due to escaped fish, net upkeep, storm damage and predators. In any case, the refusal of SAR to give full consideration to closed containment reduces the credibility of the report. This is especially the case when the mandate of the board was to conduct a review of the environmental risks associated with aquaculture, and recommend methods to mitigate those risks. The fact that closed containment systems would eliminate or reduce many of the problems now associated with netpen escapes suggests that the government must give full consideration to requiring its implementation.
Short of closed containment however, there is no recommendation requiring salmon farmers to meet certain standards of netpen quality in terms of quality of mesh in the pens, nets to keep predators out, height of fences to contain storm damage and so on. If it is decided by the government that they are going to stay with netpens, then we must ensure that the best possible netpens are required by law in order to mitigate possible environmental harm.
A further concern regarding escaped salmon is the possible effects that may occur if farmed salmon that are raised in fresh water escape. TAT recommended that the government prohibit salmon farming in freshwater lakes that have important indigenous populations. This implicitly recognizes the higher risk posed by salmon that escape into freshwater. Currently, there are two BC lakes where salmon are raised in netpens. Due to increased concentrations of escaped fish in lakes, as well as better spawning conditions, salmon that escape into freshwater have a greater chance of reproducing and establishing populations. TAT notes that the Ministry of Environment, Lands and Parks received reports of escaped fish found in these two lakes. Furthermore, TAT reported that 40 000 smolts escaped from a pen into Georgie Lake. This is especially concerning in light of the fact that a number of self-sustaining landlocked salmon runs have become established in Argentina.
When non-native fish are introduced into an ecosystem, colonization and competition can have disastrous effects upon native species of fish and plants. Due to the above evidence, it is unlikely that escapes into freshwater should be considered low-risk. This is especially true in light of the fact that both the BC Salmon Farmers Assocation and the Ministry of Agriculture, Fisheries and Food have lobbied for increased netpen production in BC freshwater lakes. Therefore, the raising of salmon in netpens in freshwater lakes, at least those with important indigenous populations should be prohibited.
The SAR report also recommends amendment to the Aquaculture Regulation. This is an admirable recommedation as aquaculture is currently one of the most under-regulated industries in BC. The primary piece of legislation dealing with aquaculture is the Aquaculture Regulation, passed under the authority of the provincial Fisheries Act. The regulation is three pages long, and mostly deals with the granting of licences.
There are two sections that deal with fish escapes. Section 7 says that no one shall release fish from an aquaculture facility unless authorized, and also that a holder of an aquaculture licence must take reasonable precautions to prevent escapes. Section 8 requires that escapes be reported. These sections are inadequate because there is very little enforcement. The only inducement for salmon farmers to report escapes is when large amounts of fish escape. This is so the farmers can make insurance claims for their losses. As the TAT report outlined, up to 1/2 of the fish that escape go unreported, possibly because they are unnoticed, and possibly because the amount of fish that escape are insufficient to make an insurance claim. SAR recommends that the Aquaculture Regulation be amended to require farmers to have operational plans that will state what measures will be adopted to prevent salmon escapes. We feel that the regulation itself should state minimum measures that farmers must adhere to.
SAR recommends that failure to comply with regulatory requirements should lead to disciplinary measures such as fines or licence revocation. We agree with this recommendation, however, we are concerned by the willingness of the Ministry of Agriculture, Fisheries and Food to enforce any possible penalties. The Fisheries Act already provides for penalties, but to our knowledge, MAFF has not levied any penalties for not taking reasonable care in preventing fish escapes, or for non-reporting of escapes. We are concerned that MAFF may be hesitant to enforce new regulations. This concern stems from the fact that MAFF resisted many of the TAT’s recommendations. For instance, MAFF was against TAT’s recommendation that all-female or non-reproductive Atlantic salmon be introduced. MAFF also expressed concerns about requiring farms to maintain standardized information collection and reporting systems that would allow improved tracking of escapes. Concern was also expressed by MAFF that a prohibition on farming on freshwater lakes might unduly restrict the industry. TAT recommended that farms be required to implement ‘escaped salmon recovery plans’ that would have to be implemented upon the escape of 500 fish. This is a fairly low threshold, and shows caution. However, MAFF was against this, stating that 10 000 would be more appropriate – a very high threshold that would allow very large escapes to occur without recovery plans being implemented. Most importantly, MAFF opposed penalties for non-reporting of fish escapes. Since it is MAFF that is in charge of enforcing the Aquaculture Regulation, their response to the TAT recommendations suggests that they will be hesitant to support the regulation that is necessary to ensure that aquaculture remains sustainable.
When salmon escape, in order to reduce possible risks to the environment, it is necessary to catch as many fish as possible immediately after the escape. Although SAR recommends that salmon farmers develop escape recovery plans, under federal regulations a licence is required before anyone can catch escaped farm fish. This requirement is unacceptable as it prevents both members of the public, and farm operators, from quickly reducing potential impacts of escapes. We recommend that the Department of Fisheries and Oceans do away with their licensing requirement.
A further concern that we have with regulation is the role played by the federal Department of Fisheries and Oceans. Under the memorandum of understanding signed between British Columbia and the federal government, the province is in charge of most of the licensing and regulation, and the federal government remains in charge of protection of wild fish habitat. Section 36(3) of the Fisheries Act prevents the deposit of a deleterious substance into waters frequented by fish. The term deposit includes both intentional and accidental deposit of such substances into the water. Actual harm to fish does not have to be proven. It is sufficient for the purposes of the Act that the substance is deleterious to fish. Not every escape of farmed salmon is going to be considered deleterious to fish. However, with large scale escapes of fish, it is possible that there could be a deleterious effect on wild fish, especially when one considers the cumulative risk posed by the various genetic and ecological concerns examined by TAT. While it is not clear that escaped farm fish would qualify as a deleterious substance, it is quite possible that they would. Last year, the Washington State Pollution Control Board classifed escaped farm fish as pollutants in a similar situation. (Goldburg & Triplett p.106) To date, DFO has not charged salmon farmers under section 36(3) of the Fisheries Act. The threat of charges under the Act may induce farmers to ensure that adequate care is taken and proper equipment upkeep is maintained, thereby reducing escapes.
A great deal of debate has arisen over the validity of the scientific conclusions coming out of the TAT report. Most contentious are those conclusions dealing with the risks that escaped Atlantics pose, and how Pacifics actually have a higher potential for adverse effects on wild stocks. Also of considerable debate is the statement that, overall, the risk of adverse effects to the province from current levels of escaped salmon is low. This paper does not purport to deal with the scientific issues associated with escaped salmon beyond noting that the TAT conclusions are hotly contested. However, it is illuminating to point out that at a recent hearing before the Washington State Pollution Control Board, Dr. Lee Alverson, who authored the TAT report, testified as follows:
“We conclude, however, that the continued escape of several hundred thousand fish from BC and Washington farms each year is a risk that would seem unacceptable.” (p. comm., K. Wristen)
This concession is especially important when one considers that the TAT/SAR recommendations are meant to deal with problems that now exist with the industry and its regulation. As such they will also form the basis for the government and industry practice when the current moratorium on the granting of aquaculture tenures is lifted. While much is made of the TAT conclusion that risks are low at the current level of salmon escapes, neither the SAR nor the TAT deal with the risks posed by the increased levels of escapes that will inevitably should the industry expand. The one clear means by which to avoid salmon escapes altogether is to require closed containment systems. If a requirement for closed containment is not adopted, then at the very least, the government must have a vast increase in the regulation of the aquaculture industry. They must require that farm operators use the best available equipment to prevent escapes, and they must punish those that negligently cause escapes or fail to report escapes. Otherwise, there is no certainty that the risks posed by salmon escapes will remain low.
Chapter 5: FARM AND WILD FISH HEALTH
By: Kathryn Stothard
Environmental Impacts of Aquaculture
The purpose of this paper is to examine the Salmon Aquaculture Review (SAR) (Environmental Assessment Office, 1997) and its recommendations as pertaining to fish health. The issue of fish health as a result of aquaculture activity is of critical concern. There are several sub-issues involved. The transfer of disease from eggs and smolts to farmed fish within the B.C. coast is one issue. The transfer of exotic disease from farm fish to wild fish populations is another very important issue. The effect of medications on the ocean ecosystem and the overall effect on human health from consumption of farmed and effected wild fish is another main concern. Also of concern is the possibility of farm fish contracting indigenous disease from wild populations. Concern over the use of antibiotics and the potential resistance to antibiotics and the transfer of this resistance to humans is also relevant.
Much of the concern comes from the fact that the majority of aquaculture operations in B.C. are open netcages. This means that ocean is vulnerable to the contents of fish farm operations. These contents can include disease, medications, diseased and medicated fish. Not enough attention is given to the vulnerability of the marine ecosystem. The ocean is a vast system and we are unable to control or even realize our affects on it. The fact that we could probably do little to repair or mitigate damage to the marine ecosystem once we affect it, or infect it, is an underlying concern.
Atlantic salmon are imported for use in B.C. aquaculture because they are more resistant to certain diseases, and are more tolerant to a higher density of fish, grow more quickly than Pacific salmon and have an established market. Native wild fish are vulnerable to exotic disease so there is great concern about the potential disaster of a disease outbreak.
The environment within the netcage is stressful to fish and therefore can cause disease flare-ups. (Net Loss, 1997: 122). Monoculture within the aquaculture operations can exacerbate the spread of disease. Research is limited as to what diseases exist currently in wild populations, and the potential affects of any disease transfer.
The majority of the concerns in fish health are the result of a reactive regulatory regime and industry. A precautionary approach must be implemented to reduce the risks to acceptable levels. Little risk should be acceptable when the health of the ocean and coast is at stake.
It is agreed within the scientific community that no netcage facility can quarantine a disease outbreak once introduced into an uncontained aquatic setting, as the disease agent of concern cannot be destroyed form an area effectively and the medium cannot be disinfected. (Georgia Strait Alliance, 1997: 16)
I will not go into detail regarding the specific diseases that could affect salmon. The technical details can be found in the other reports.
The Georgia Strait Alliance report (1997) enumerates many concerns regarding fish health. They are quite specific. Some of their concerns are as follows:
- Lack of effective escape recapture strategy.
- Netcage facility conditions pose a perfect host and dispersal mechanism for pathogens and parasites.
- Escape and disease transmissibility from transport of live fish and fish eggs as per Health Protection Regulations under the Federal Fisheries Act.
- While importations are prohibited from facilities where a salmonoid pathogen not known to occur in B.C. exists, this does not amply prevent the “amplification factor” of disease pathogen severity from medicated netcage salmon to wild stocks, nor does it prevent in practice the introduction of more virulent strains of pathogens known to occur in B.C.
- Disease agent in morts not identified though testing until days (if not weeks) after divers have retrieved morts from the bottom of netcages, setting the stage for a catastrophic endemic outbreak.
- Unreasonable risk to wild stocks created by frequent escapes and “chronic leakage”.
- The Animal Disease Control Act, 1979, enacted to limit the spread of infectious or contagious diseases, does not identify diseases specific to aquatic animals.
- Lack of compensation to commercial, sport and aboriginal fishers for stock decline from disease transmitted to wild stocks from netcage operations.
- Mixing and handling of medicated feeds by fish farm employees.
- Hormone bathing at broodstock facilities.
- Pathogen and residue-tainted farm fish are in contravention of the federal Fish Inspection Act, governing export and interprovincial trade.
- “Unapproved” drugs for farm fish routinely prescribed by industry veterinarians and administered and mixed by farm employees (a violation of the Food and Drug Regulations specified under the Food and Drug Act regulated by Health Canada).
- Lack of studies of netcage-induced sublethal stresses on wild salmon.
- Lack of studies on antibiotic uptake in benthic dwelling fishes or pelagics near netcages.
- Lack of studies on mammal or avian predation of farm salmon or benthic/pelagic species, which have consumed medicated feed, to determine harmful health effects at various levels of the food chain.
- Lack of studies to determine if sediment-sifting Gray Whales have been adversely impacted or are subject of concern if future industry expansion occurs.
There are many concerns over the risks of netcage farms. They involve not only fish health but also the health of all animals and mammals (including humans) that could be effected. The Technical Advisory Team report (1997) also enumerates the more general concerns regarding fish health. Briefly they are as follows:
- Importation of exotic pathogens
- Transmission of disease from farm to wild fish
- Food-borne infectious disease risks
- Disease surveillance
- Effects of antimicrobial drugs and pesticides on humans or other fishes
- Drug use surveillance
- The Regulatory Framework
There is no comprehensive legislation to deal with fish health, so the result is a variety of applicable legislation. I will present some of this law, the main information source being the Hillyer report The Management and Regulatory Framework for Salmon Aquaculture in British Columbia (1997).
The transport of fish and eggs is an important aspect of fish health. Under the provincial Fisheries Act, the Aquaculture Regulation requires a person who transports fish to take reasonable precautions to prevent the escape of fish. Under the federal Fisheries Act, the Fishery (General) Regulations, prohibit the transfer of any live fish to any fish rearing facility unless the transfer is authorized under a licence issued by the Minister of Fisheries an Oceans. The Minister may issue a licence only if
- The transfer would be in keeping with the proper management and control of fisheries,
- The fish do not have any disease or disease agent that may be harmful to the protection and conservation of fish, and
- The transfer will not have an adverse effect on the stock size of fish or the genetic characteristics of fish or fish stocks.
The federal Fish Health Protection Regulations (CFHPR) under the federal Fisheries Act were created in 1984. The CFHPR regulate the fish and fish egg movements. Farms are checked for disease twice a year and all fish inspected must be free of the pathogens/diseases listed in the regulations. A farm can only import fish from a certified facility. In order for a facility to be certified under the CFHPR it must be free of the diseases listed in the regulations and provide a satisfactory disease history. The CFHPR provide that no one may import cultured fish or eggs of wild fish without an import permit. An import permit may be issued only where the person who applies for the permit has obtained a certificate from a fish health official. Eggs or fish being imported must be free of any disease agent listed in Schedule II of the Regulations. Diseases listed in Schedule IV of the Regulations must be listed on the certificate, but can be imported if the official determines the disease will not be harmful to the protection or conservation of fish in the province. The Department of Fisheries and Oceans (DFO) currently pays all the costs for health certification under the Regulations, although it intends to begin recovering the costs. There are proposed amendments to the Regulations, some of which may loosen restraints on transfers. This remains to be seen.
A very important aspect of fish health is guided by policy. The Policy for the Importation of Atlantic Salmon into British Columbia was instituted in 1992 by DFO. It requires all proposals to import Atlantic salmon into B.C to be assessed and authorized by DFO based on the protocol outlined in the Policy. The protocol in the Policy is important and is as follows:
- each importation must comply with the federal Fish Health Protection Regulations
- only surface-disinfected, fertilized eggs will be imported and no live fish or unfertilized eggs will be imported;
- importation of milt is allowed if the broodstock from which the milt is collected complies with the federal Fish Health Protection egg imports are allowed only from broodstock that has been held in captivity by the source facility for one full generation;
- the eggs (with eyes) must arrive in V.C a minimum of 15 days before they hatch; importations are allowed only from facilities: inspected and approved by a local fish health officer at least 15 days prior to the eggs or milt arriving in B.C., where there is a program of regular fish health monitoring and documentation by a fish health official approved to inspect fish sources under the federal Fish Health Protection Regulations, if freshwater, that use a fish-free ground water supply and isolation areas for egg incubation, and that provide access to complete fish health, mortality, pedigree and production records for the facility and stock from which the sex products destined for B.C. have been collected;
- no importations will be allowed from facilities or site: where a salmonid pathogen not known to occur in B.C. exists, where a fish pathogen exists that has been designated as a problematic strain because of drug resistance or enhanced pathogenicity, or that do not take measures to prevent the movement, importation, control, and eradication of fish disease of concern to B.C.;
- upon arrival in B.C, all imported Atlantic salmon eggs must be held under strict quarantine in a an approved facility according to the detailed procedures set out in the Policy;
- companies operating a quarantine facility must agree to enter to contract with DFO regarding the design, operation and monitoring of the facility;
- if a disease agent of concern to DFO is detected during the quarantine period, all stocks within the facility must be destroyed and a full program of disinfection carried out; and
- all mortality records and the results of testing carried out on the quarantined stocks must be submitted to DFO within the times set out in the Policy.
Importing Pacific salmon into B.C. is governed by another policy, the Federal-Provincial Policy for the Importation of Pacific Salmon into British Columbia. See the Hillyer report for further detail.
An aquaculture operation requires an operating licence from MAFF. It requires a salmon farmer to undertake reasonable and lawful practices necessary for disease control. There is question as to whether behaving lawfully is enough to protect fish and the ocean from disease. The provincial Animal Disease Control Act provides statutory authority to limit the spread of infectious or contagious diseases in all stages of development. Unfortunately however no diseases specific to aquatic animals are listed in the Act and therefore not included in the definition of infectious or contagious disease for the purpose of the Act. The Act provides procedures that must be followed when a listed disease is detected. It would be useful for the Act to extend to the aquatic realm.
The federal Health of Animals Act deals with the control of diseases and toxic substances in animals. However, fish are not included in the definition of animal. No diseases specific to aquatic animals are listed in the Reportable Diseases Regulations under the Act. Since neither the provincial nor federal Acts apply to aquatic animals, there is no statutory authority requiring salmon farmers to report fish diseases.
There is a Memorandum of Understanding Respecting the Fish Disease Database between DFO and MELP that sets out the responsibility for creating and maintaining the database. This does not make farmers responsible for reporting.
Fish feed is regulated at the federal level by the Feeds Act and provincially by the Pharmacist, Pharmacy Operations and Drug Scheduling Act. The regulations involving therapeutic drugs are detailed in Ann Hillyer’s report (1997) and includes the Food and Drug Act. I will not go into them in detail here as the framework is complex. It is important to note the Aquaculture Regulations under the provincial Fisheries Act. The Regulation requires salmon farmers to keep a record of drugs administered to farmed salmon, and further provides that a person delivering fin fish from an aquaculture facility to a processing plant, or fish buying station will provide a statement that includes, among other things, the date of the last treatment, if any, with a drug. The Regulation also includes a requirement for a drug free period before harvest.
In terms of testing farmed salmon destined for human consumption, it is the responsibility of the Inspection Branch of DFO. Not all drugs that potentially are prescribed by veterinarians are tested for. The performance of a facility determines the regularity of testing. It is estimated that DFO tests 200 samples per year. The frequency of sampling should be carefully examined for adequacy. The finer details of the regulations are examined by Ann Hillyer (1997) and the TAT reports (1997).
There certainly is no comprehensive Act that applies to netcage operations. It is a piecemeal framework that regulates the industry. This can compound the problem of uncertainty when various authorities grant permits or attempt to enforce legislation.
The Technical Advisory Team Report
The Technical Advisory Team (TAT) recommendations are important because they were created to inform the SAR report. I will briefly describe the TAT recommendations. First a general recommendation is made that the “provincial and federal health agencies should amend their regulations, guidelines and procedures towards a proactive policy of disease preventionóone which further reduces the risk of transmission of parasites/pathogens from farmed to wild stocks; improves upon the ability to detect and respond to fish diseases; minimizes the use of drugs in salmon farming; and generally makes health regulations for salmon farming equivalent to those in other animal husbandry sectors” (N/A: 1997). The problem with this is that there is no other farming environment like the ocean, and the TAT neglects to look at alternatives such as closed containment systems.
The specific recommendations regarding fish health, 10 in total, are made and are as follows:
- Clarify and rationalize institutional structures and roles respecting fish health.
- Develop enforceable standards of practice for managing farmed salmon health, as a condition of the salmon aquaculture licence.
- Develop voluntary fish health management and quality assurance programs to enhance health and productivity.
- Expand the application of existing tools.
- Strengthen disease control and surveillance programs.
- Improve requirements for fish disease reporting.
- Improve the quality of, and access to, fish health databases
- Strengthen regulations, policies and programs respecting disease testing, fish and egg importation, and fish transfer.
- Enhance fish health inspection practices at fish processing facilities.
- Minimize the probability of human exposure to drugs and pesticides used at salmon farms.
The TAT recommendations are described in more detail in the report. The TAT was restrained to look at the current aquaculture methods and suggest changes to the existing methods. I think that the recommendations made are good ones in light of these restraints.
The Salmon Aquaculture Review
The SAR review begins by examining the legislation in relation to fish health. There is no need to repeat it here as the regulatory framework is discussed above. Rather the SAR recommendations will be presented and critiqued.
SAR does acknowledge the lack of co-operation between ministries. There must not be pressure for compromise forced on the ministries, which have very different mandates. MELP must not be put in a situation where the economic importance of the industry is used to quash environmental concerns. SAR recommends in its first recommendation regarding fish health, that a committee be formed to promote integrated and corporate fish health policy:
- Establish a Fish Health Working Committee to promote integrated and corporate fish health policy development in B.C.
- It is suggested that the Committee consist of experts and stakeholders. There is good reason to be wary of stakeholder processes, especially when there is a lack of preventive, comprehensive legislation as a basis for environmental protection. Such a committee could create policies, but there should be more than just policy as a goal.
- SAR does approach the lack of scientific information regarding fish diseases. The next recommendation is:
- Strengthen disease surveillance and control programs
This recommendation is a good one. The lack of information is critical
The next recommendation addresses the ambiguity in the current requirement of “reasonable practises” for the operation of fish farms:
- Develop standards for managing farmed salmon health as part of a salmon aquaculture code of practice, and enforce the standards as a condition of the salmon aquaculture licence.
A strict code is warranted for the operation of farms. Practically however, the chance of enforcement is slim considering shrinking government budgets and staff numbers.
Currently there is virtually no reporting of disease by aquaculture operations. No legislation compels disclosure. SAR recommends more open information:
- Improve the quality and accessibility of fish health information.
Any improvement in access to data on fish health is welcome. It would seem appropriate to legislate a requirement to report disease to officials, with stringent penalties for non-compliance. Such a requirement is essential for the prevention of more damage and for public safety.
Next SAR deals with the importation of eggs and the possibility of introducing exotic pathogens.
- Strengthen policies and programs respecting importation.
SAR does acknowledge that the current policy of importing eggs and surface-only disinfection reduces the chance of disease, but does not eliminate the possibility. It joins in the numbers game by suggesting a reduction in the amount of eggs to be imported. The importation of eggs should be phased out. The importation of eggs in the first place was to develop broodstock and then use the eggs of the broodstock. By continuing to import eggs, the marine ecosystem is put at risk. Examples of disease outbreaks in Europe and now in New Brunswick should be impetus enough to ban egg importation. The SAR does not address the possibility of utilizing Pacific salmon rather than Atlantic.
The SAR suggests in its next recommendation that in order to reduce the possibility of transfer of disease within the province, more reporting is necessary:
- Strengthen the requirements for sampling and reporting of diseases in fish being transferred within B.C.
SAR suggests that to “reduce the reporting burden on industry”, a quantitative risk assessment should be used. The onus should be on industry to provide the information through independent researchers. The limited resources of government make comprehensive data collection by government unrealistic.
Human health is addressed in the following recommendation:
- Enhance fish health inspection practices at fish processing facilities.
The details of this recommendation include appropriate ideas, including unexpected audits; independent lab testing; sampling amounts be increased; and the costs should be recovered from industry. The results should be made publicly available. There should also be labelling requirements for the benefit of consumers. Also recommended with health in mind is the following:
- Strengthen control of drug use on salmon farms.
Drug use must be controlled and reduced and ideally eliminated. It is another area that requires further study. The possibility of accumulations in the ocean and detriment to the health of communities surrounding fish farms is of paramount concern. Rather than taking a precautionary approach with regard to antibiotic use SAR recommends:
- MOH and Health Canada should undertake further review of issues related to antibiotic and other drug use at salmon farms.
This recommendation is inappropriate considering the lack of knowledge regarding the accumulation of antibiotics in the marine environment. The practice can not be permitted to carry on while “waiting to see” what the effects are.
It is appears that the SAR report is a general watering down of the TAT recommendations. The TAT recommendation to clarify the institutional structures and roles respecting fish health seems preferable that the SAR recommendation to create a committee. There is a valid need to analyse the institutions involved to insure there are no gaps or overlaps. The institutions involved need to know who is responsible for what issues. The SAR recommendations have been critiqued above. In general they involve the reduction of risk in the operation of netcage operations
The report submitted by the David Suzuki Foundation, Net Loss, (1996) highlights issues that provide amply fodder to be critical of the SAR report. Examples of such information are as follows:
- The confusing nature of the regulations governing the use of drugs, chemicals, and biological products in the aquaculture industry. This doesn’t result in “overregulation”, but rather, “multiregulation”. (see appendix 12 of Net Loss)
- The lack of information and requirement to provide the amount of medicated feed used in operations.
- The great insufficiency of knowledge regarding the persistence of antibiotics used in operations and the impacts on human health.
- The unknown risks to farm workers from exposure to drugs and chemicals
- “That we are playing Russian Roulette with our native populations be continuing to import 0.4 to 1.7 million eggs per year” (Narver in Ellis: 131)
- The weak enforcement of any existing regulations due to budget cuts and inadequate staff numbers.
Net Loss also introduces issues absent in either the TAT or SAR reports. For example the pressing issue of trade disputes. Salmon egg and smolt producers in the U.S., with the apparent support of B.C. fish farmers are arguing that the banning of importations from the U.S. is in contravention of the Canada-U.S Free Trade Agreement. This is a very important issue. If successful, fish farmers could be free to import eggs and even smolts in unlimited amounts. It is irresponsible that the SAR report did not address this issue. In appendix 11 of Net Loss is listed numerous substances currently used in salmon aquaculture that are not approved for use. Also of great interest to issue of fish disease are appendices 16 and 17 of Net Loss. Appendix 16 presents major salmon disease outbreaks in B.C, documentation of which doesn’t occur in the fish health section of the SAR report. Appendix 17 describes major disease outbreaks in Europe. These provide great impetus for highlighting the importance of the precautionary approach and the banning of egg importation. Finally, Net Loss provides an inside look into the lobbying story of the importation of Atlantic salmon into B.C. Presented here is the revelation that the first importations were allowed as a result of political decisions. Also the use of the Canada-U.S. Trade Agreement by aquaculture operations is exposed.
The TAT report espouses a “proactive policy of disease prevention”. A reduction in risk is not a solution that can adequately protect wild fish populations and protect the marine ecosystem. The precautionary approach is not satisfied by the TAT or SAR recommendations.
Problems regarding scientific uncertainty can not be solved just be writing more legislation. The SAR report is curious in that it is a product of the environmental assessment office, yet it really doesn’t seem to focus on the environment and avoids considering alternatives to the open netcage operations. Wild salmon, the marine ecosystem and even human health are all at stake in the issue of aquaculture operations.
It seems that no amount of regulation could adequately guarantee the prevention of disease transmission and leakage of medications and pollutants. Egg importation should be banned to adequately prevent disease outbreak along our coast. Closed containment systems might be able to offer better protection without the monstrous cost of the regulations that would be required to make netcages slightly more ecologically acceptable.
Chapter 6: INTERACTIONS WITH COASTAL MAMMALS & OTHER SPECIES
By: Mitchell Couling
Concerns have been expressed about the interactions between salmon farms and local populations of biota or species. A significant finding reached by the EAO is that there is a paucity of research, and hence information with respect to these interactions. A number of fish, coastal mammals and birds are attracted to the farming operation as a potential source of food. The potential food sources are the salmon, and to a lesser degree, excess feed, mortalities, waste and epifauna (fouling plants and animals that grow on structures). Environmental concern stems from the current salmon farm operational practices which pose undesirable impacts and threats to marine mammals and other wildlife. The operational practices result in the killing of species and the loss of habitat in the area surrounding a salmon farming operation.
Salmon farm operations are normally concerned about the local species because predation on the caged salmon can cause considerable economic loss. Attacks by predators can cause economic loss through a variety of ways: direct predation of salmon, causing tears and holes in net-cages which enables salmon to escape, causing small wounds and descaling to the salmon which can reduce the salmon’s market value and increase their vulnerability to disease, and increasing fish stress thereby also increasing the vulnerability to disease and causing reduced feeding (longer grow out periods). Salmon farms attempt to control predation through a variety of practices: dogs, noise makers, electric fences, acoustic deterrent devices (ADD), seal bombs, net construction technologies, as well as the trapping and killing of predators. Other countries also use olfactory deterrents, emetics, designed to induce vomiting to deter predatory seals/sea lions.
The effect of salmon farms on local species is unknown. As stated earlier, the effect of salmon farms on marine mammals and other species suffers from a lack of research. This emphasizes the fact that we must use the precautionary principle, which advocates the consideration and anticipation of the potential negative impacts of an activity before it is approved, in coming to recommendations for government to regulate the aquaculture industry to ensure that local species are protected.
There is a general lack of regulation of the aquaculture industry, as well as a lack of monitoring of the environmental impacts. EAO acknowledges that the growth and development of the industry have outpaced the ability of government to plan and manage it. This is emphasized by the extent and breadth of the SAR recommendations. The deficiency in regulation has lead to a lack of public confidence that salmon farms are acting in an environmentally responsible manner. Furthermore, the existing regulatory mechanisms are ineffective at protecting species from being killed to prevent predation on farmed salmon. The main reason for this is the lack of regulations with respect to the standards of operation/technologies (practices) used at salmon farms to prevent interactions between farmed salmon and local species (e.g. seals/sea lions/birds/small mammals). The aquaculture industry, for the most part, has chosen the less costly route of killing and deterring with devices to prevent interactions between farmed salmon and wildlife, rather than the more expensive route of physical predator prevention systems and labour intensive practices. Effective predator prevention net systems are currently available. However, a predator prevention net system for a 24 net cage operation costs approximately one-quarter of a million dollars (EAO, p.171 ). As such, one-third of existing salmon farmers do not employ predator net systems. The economic cost to initially install adequate predator protection and the accompanying maintenance costs involved are a significant investment. If an available option is to employ a significantly cheaper technology and kill the offending predatory species, some operations, will chose to do so. Accordingly, there is a need for regulation over the voluntary/discretionary standards of operation/technologies that are currently in place to ensure the protection of species.
The following is a brief summary of the regulatory network currently in place which is relevant to the interactions between salmon farms and coastal mammals and other species.
An Aquaculture Development Plan (ADP) must be approved by MAFF prior to starting a salmon farm operation. An Aquaculture operating licence must be issued and renewed annually under authority of the Aquaculture Regulations, pursuant to the provincial Fisheries Act. The aquaculture licence is administered by MAFF. It contains a general provision requiring salmon farmers to prevent predation. This licence also requires the salmon farmer to undertake reasonable and lawful practices necessary to prevent marine mammals and birds from preying on farmed fish. Both the ADP and aquaculture licence may contain site specific requirements to prevent predation. In general, though neither will contain site specific measures to prevent predation. As such, the salmon farm operator is free to use whatever means necessary to minimize predation that they see as effective without considering impacts on local wildlife populations.
DFO is responsible for marine mammal protection. No one may disturb/harm a marine mammal without a licence under the federal marine mammal regulations of the federal Fisheries Act. Currently salmon farms require an annually renewable licence to kill seals/sea lions. The licence is, theoretically, issued where conventional predation control methods have been found ineffective. However, as there are no industry or regulatory standards with respect to what conventional predator control methods are, this requirement seems meaningless. The salmon farms are required to report the total number and species of pinniped (seal/sea lion) killed. This is a self-reporting system with no verification with respect to compliance with the terms of the permit.
DFO has issued authorizations for salmon farms to deploy and operate ADD according to specific procedures and requirements as a “pilot project”. No information was brought forward to SAR as to the terms of this “pilot project”, its evaluative criteria or duration. The “pilot project” effectiveness was not assessed by SAR because no data was provided with which to do so.
MELP and Environment Canada are responsible through the provincial Wildlife Act and federal Migratory Bird Convention Act for the protection of other species: birds (kingfisher, great blue heron, eagles), river otter, mink, bear and other animals. Both acts require permits to kill or trap species that affect salmon farm operations. This is a self-reporting system with no verification with respect to compliance with the terms of the permit.
SAR made four recommendations to protect marine mammals and other species from the impacts of salmon farming. The four SAR recommendations only deal with the impacts of salmon farming in salt water environment (the grow out phase).
Recommendation 36: Phase out Acoustic Deterrent Devices (ADD) over two years.
The long term impacts of high intensity signals from ADD on aquatic mammals are unknown due to a lack of substantial research on this issue. However, pinnipeds (seals/sea lions) that are not deterred by ADD may experience hearing damage at close range. ADD have varying effectiveness in deterring predation by pinnipeds among farm sites, which have indicated that there is a diminishing deterrent response or habituation to ADD with time. Harbour porpoises avoid exposure to ADD signals by altering normal movement patterns (TAT, p.24). This could result in appreciable habitat loss through acoustic exclusion zones, impeding normal movements and loss of access to foraging habitat. The effect of ADD on baleen whales (humpback, gray, minke) and killer whales is unknown, but anecdotal evidence suggests it has an effect similar to that as on harbour porpoises (TAT, p.25). The impact of ADD signals may also cause interference with communication signals, interference with passive listening by means of acoustic masking and the possibility of hearing damage to cetaceans. Accordingly, ADD should be phased out due to the adverse affects on marine mammals. ADD are not considered a long-term or a desirable primary method of predation control due to the habituation that pinnipeds develop to the devices. The only criticism of this recommendation is that in following the precautionary principle ADD should be phased out immediately due to the known and potential adverse impacts on marine mammals and the ineffectiveness of preventing predation.
Recommendation 34: Predation prevention plans are required to be phased in over two years and incorporated into the aquaculture licence.
Recommendation 34 has four elements:
1. Every salmon farm is required to have a predation prevention plan which identifies the specific measures that will be used to deter predators, such as specific net systems or other physical barriers.
2. Predation prevention plans should be incorporated into the aquaculture operating licence. Therefore, the predation prevention plan would be an enforceable condition of the continued operating licence by the regulatory agency, MAFF.
3. Government should develop a guidebook of the best available standards of operation and technologies to assist operators in preventing predation and to enable preparation of a proper predation prevention plan
4. The phase out of ADD should coincide with the phase in of predation prevention plans.
Recommendation 35: Strict control of killing predators at farm sites.
Recommendation 35 has three elements:
1. Killing should only be permitted by government if the predator is inside the predator or growing nets and is actively attacking fish stock or is about to do so.
2. Operators should accurately report all problem predators and killing of predators to enable possible modification of predation prevention plans (self-reporting system).
3. Government staff should keep records of all predator kills at farm sites as a basis for monitoring the effectiveness of individual predation prevention plans, and for incorporating changes to such plans as warranted.
The key to controlling the effect that salmon farms have on marine mammals and other species (re: killing and loss of habitat) is requiring an effective means to keep wildlife from gaining access to the site. A predation prevention plan should aim to exclude all wildlife from the site by running the farm according to certain standards of operation, and establishing specific technology or practices to prevent predation and interactions. A predation prevention plan must encompass all species of wildlife, including pinnipeds, river otters, birds, diving ducks, and bears. In other words, each species should be addressed specifically. In most cases, the techniques to exclude a species from the site will encompass a number or all species. Accordingly, the predation prevention plan would includes aspects such as: a site diagram, how to deal with mortalities, feed storage and excluding physical access to the site. The plan should be a required part of the Aquaculture Development Plan to be submitted to MAFF before the salmon farm receives an operating licence for each salmon farm under the provincial Aquaculture Regulations under the provincial Fisheries Act .
If all aspects of the above recommendations are implemented, this would address the environmental concerns that stem from the killing of species and the loss of habitat to the species in the area surrounding a salmon farm operation. However, the question that needs to be asked is how effectively can these recommendations be implemented? To ensure the recommendations are effectively implemented the specific criticisms below need to be addressed or followed.
1. The predation prevention plan should be require the approval of by a registered professional biologist.
2. The regulating agency responsible for implementation of the predation prevention plan scheme under recommendation 34 would be MAFF. However, the responsibility for protection of wildlife currently falls under DFO and MELP jurisdiction. As such, a feasible working arrangement needs to be worked out to ensure that DFO and MELP concerns will be addressed by the plan. The standards of operation suggested by DFO/MELP must be incorporated into the plan and should not be able to be overridden by the implementing regulatory agency, MAFF.
3. Proven predation prevention technologies, such as predator net systems, should be required by regulation for all farms, instead of made part of site specific operating licences.
4. The predation prevention plan should contain contingency measures and methods to investigate failures and prevent problems. An operator should have to justify any killings and propose solutions to ensure the problem does not occur again.
5. There are problems with inter-governmental agency policies with respect to recommendation 35. MAFF policy suggests that a legitimate aquaculture husbandry control measure is killing predator birds; whereas MELP policy holds that where any conflicts arise with certain species that are endangered(red-listed) or threatened(blue-listed), conservation should be given priority and supersede any aquaculture pest considerations. MELP policy should be followed to ensure protection of wildlife and compliance with the above criticism.
6. A clear policy with respect to enforcement and compliance with the terms of the predation prevention plan should be published by MAFF and available to industry and the public. The policy should indicate how non-compliance with the predation prevention plan would bring fines and culminate in termination of the operating licence if non-compliance continues.
6. Two years are not needed to phase the predation prevention plan into effect. In fact, the British Columbia Salmon Farmers Association is currently developing a comprehensive Predation Management Code of Practice in consultation with MELP, MAFF, DFO and Canadian Wildlife Service and it is expected to be in place by May 1998 (EAO, p.90). Accordingly, a shorter implementation time frame would seem to be reasonable to assure that all farms comply with the above suggested ‘code of practice’.
7. The proposed predation prevention plan does not address the issue of caged fish affecting local / migratory fish populations and other wildlife. This issue needs to be addressed at the siting stage of the process due to possible effects of: disease transmission to wild populations of salmon, salmon escapes affects on local salmon runs (genetic and competition), caged salmon predation effects on local/migratory (juvenile salmon, prawns, larvae of crab, shellfish, crustaceans) prey populations, and local populations of shellfish, crabs (e.g. salmon farm waste discharge).
8. The regulatory system to report predator killing is a self-reporting system that is dependent on fish farms reporting all killing of species. There is no monitoring/enforcement of the accuracy of the reporting. It is practically and financially impossible to adequately monitor the reporting as farms are in remote areas. There must be a means for the public to report on, and obtain action on, unauthorized kills; in conjunction with monitoring, in order for the public to have confidence in the regulatory system.
9. The government should require industry transparency for data disclosure respecting the killing of predators. This will enable the public to develop confidence in the predator prevention plan in place. If an unacceptable number of predators is being killed, the public should require the plan to be modified. However, there is an inherent problem with this, as the accompanying bad publicity would encourage salmon farms not to report the killing of species to the government.
10. Whistle blower legislation should be established, to protect employees that report non-reported killings and other violations of Acts and an information reporting hotline analogous to ‘Crime Stoppers’ should be set up to report these environmental offences.
Recommendation 37: Restrict practice of ‘night lighting’ to existing licensed sites until the results of further research is available.
There has been a lack of systematic research on effects of night lighting. Preliminary research to date shows that salmon in net cages do not consume significant amounts of wild fish that may be attracted to the net cages by the lights. However, conflicting anecdotal evidence suggests that night lighting attracts predators and prey species to the site, and causes caged fish to eat local populations of prey species (including juvenile salmon, larvae of shellfish, crustaceans etc.). The aquaculture industry would like to see the practice of ‘night lighting’ continue as lights reduce grow out time (time taken for fish to reach appropriate size for market) and prevent quality problems due to early maturation of the Atlantic salmon. DFO, the regulatory agency in charge of protecting local populations of prey species does not support the recommendation that night lighting be restricted. This DFO policy clearly does not follow the precautionary principle. The SAR recommendation, by maintaining the status quo, until further research results are available, would seem to be a prudent course of action.
Issue the SAR recommendations did not address:
Farm Practices Protection (Right to Farm) Act (FPP)
As Emily Walter describes in Chapter 3, if the requirements of the FPP Act are followed on a salmon farm operation, a farmer cannot be sued in nuisance for any odour, noise, dust or other disturbance and a farmer cannot by injunction or other court order be prevented from carrying on that farming operation. The only remedy available to complainants is to bring a complaint to the Farm Practices Board, and the Board will determine if the farmer’s action is a normal farm practice. There are no ‘normal’ farm practices established for aquaculture. Aquaculture differs from land-based farming in that it is not a traditional activity with a recognizable set of practices that constitute ‘good husbandry’ and are necessary to the operation of the farm. The body of ‘farm practices’ is being developed and there is no proven track record of safe and effective farm practices. As such, the aquaculture industry has no right to have their practices protected by legislation which deprives citizens of an important common law remedy. Aquaculture should be removed from the FPP Act until a body of scientific evidence has been collected and evaluated to establish acceptable farm practices. Otherwise, the Farm Practices Board has no benchmark by which to judge the conduct of the farm and cannot grant effective remedies.
The existing regulatory scheme is ineffective at protecting marine mammals and other wildlife from being killed, and preventing loss of habitat due to salmon farming operations. The effects of salmon farms on local species is unknown. Current salmon farm operational practices pose undesirable impacts and threats to marine mammals and other wildlife. The deficiencies in the existing regulatory scheme are due to the lack of regulations with respect to the standards of operation and technologies required to prevent interactions between farmed salmon and local species.
The SAR recommendations address the problem of the existing regulatory system having voluntary standards of operation. SAR recommends phasing out ADD and implementing a system that regulates the standards of operation and technologies through the aquaculture operating licence on a site specific basis. SAR does not recommend general regulations to implement current proven predator prevention technologies on an industry wide basis. To be effective, the proposed regulatory system must be monitored and enforced through site specific requirements in combination with general regulations. Research will have to be undertaken to establish acceptable standards of operation and technologies, along with establishing the effects of these practices on local species.
SAR does not adequately address the issue of how to monitor and enforce the proposed regulatory scheme in an industry primarily located in remote areas. Although, SAR acknowledges that in the past the growth and development of the industry have outpaced the ability of government to plan and manage it, the lifting of the moratorium on new salmon farm tenures is proposed without waiting to see if the new regulatory scheme will adequately address the current problems in the industry today.
Notwithstanding the above problems, in attempting to effectively implement the SAR recommendations both government and industry would be required to invest large amounts of capital and labour. This cost to the government is a large financial subsidy to the aquaculture industry. Perhaps the costs of implementing the SAR recommendations, and ensuring compliance with them are sufficient justification for the government to require industry to move towards closed containment marine systems. A closed containment system would virtually eliminate interactions between farmed salmon and local species.
Chapter 7: FIRST NATIONS AND THE SALMON AQUACULTURE REVIEW
By: David Robbins
Introduction: Historical & Legal Context
In addition to the serious ecological concerns raised by salmon farming, the recent need for a Salmon Aquaculture Review (SAR) can also be traced to the entrenchment of common law aboriginal rights in section 35 (1) of Constitution Act, 1982:
s.35(1) The existing aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed.
The first landmark judicial interpretation of s.35(1) was the 1990 Supreme Court of Canada decision in R. v. Sparrow. Canada’s highest court found that s.35(1) protects aboriginal rights to traditional fisheries for food and social/ceremonial purposes. This case and others subsequently led to the provincial Crown Land Activities & Aboriginal Rights Policy Framework. The policy was adopted in January 1995 and designed to avoid unjustifiable infringement of aboriginal rights by the Province when making resource tenure decisions. By April 1995, over ten years after rapid expansion of the salmon net cage industry began, the Province announced a moratorium on issuing new salmon farm tenures. The SAR was initiated soon after. Since completion of the SAR in August 1997, the Supreme Court of Canada’s decision in Delgamuukw v. British Columbia has profoundly advanced the law of aboriginal title and rights. Today we await the Province’s response to both the SAR recommendations and the Delgamuukw decision.
In order for an activity to be an aboriginal right it must be an element of a practice, custom or tradition that, prior to European contact, was integral to the distinctive culture of the aboriginal group claiming the right. In the context of salmon aquaculture, the primary aboriginal activities of relevance are the integral, traditional wild fisheries. Although there have been no cases on competition for different resources between aboriginal and non-aboriginal people, infringement of s.35(1) will occur if government action significantly impairs an aboriginal right such that aboriginal peoples are undermined in their ability to continue with activities such as a traditional fishery. Thus, there is real concern that many of the existing salmon aquaculture tenures, issued prior to the various court decisions about s.35(1), are infringing upon constitutionally enshrined aboriginal fishing rights.
Aboriginal rights, however, are not absolute. They may be infringed by both the federal and provincial governments if the government can satisfy a justification test. In order to meet that test there must be a legislative objective that is compelling and substantial. The infringement must also be consistent with the fiduciary obligations of the Crown with respect to aboriginal peoples. In meeting its fiduciary obligations the Crown generally has a duty to consult with those First Nations potentially affected by the government decision. Hence, the Province must consult with aboriginal peoples potentially affected by the issuance of each salmon farm tenure and licence. In this context, First Nations have participated in the broader review of the salmon aquaculture industry via membership on the Review Committee, direct consultations with the Technical Advisory Team and the Environmental Assessment Office, and formal submissions and commentaries.
Aboriginal Concerns & Rights Infringements Raised During the SAR
Salmon farming in B.C. is predominantly located in Kwakiutl and Nuu-chah-nulth territory. Many of the ecological concerns about net cage aquaculture expressed during the SAR by non-aboriginal people echoed the submissions made by Kwakiutl and Nuu-chah-nulth Bands and Tribal Councils. These concerns included:
- unknown probabilities of irreversible damage to the eco-system (i.e. unacceptability of the Technical Advisory Team’s main finding);
- bio-chemical contamination of traditional and still dominant food sources;
- destruction of wild fishery (shellfish included) populations and habitat by poor siting, waste discharge and escapes;
- harmful interactions with other species and mammals (some of which are aboriginal food sources);
- disease transfer between farmed and wild fisheries;
- lack of monitoring and law enforcement for existing salmon farms resulting in chronic non-compliance with regulations.
These First Nations and other aboriginal groups also passionately voiced their unique and serious vulnerability to the risks associated with salmon farming. Concerns expressed included:
- cultural collapse from loss of traditional wild fisheries (First Nations are uniquely and inextricably tied to the sea, land and resources);
- unknown health impacts on aboriginal people specifically due to bio-chemical contamination of traditional and still dominant food sources;
- inadequate First Nation involvement in tenure and licence decision-making, monitoring and enforcement;
- stress due to unique vulnerability to the uncertainty and risks involved (especially on elders);
- sites interfering with access to traditional fisheries;
- lack of funding for First Nations to adequately participate in the tenure referral process;
- non-use of the traditional ecological knowledge held by First Nations in resource management;
- barriers to employment and investment by First Nations.
Many existing aquaculture tenures are arguably infringing upon aboriginal rights. The Kwakiutl Territorial Fisheries Commission’s (KTFC) submission to SAR identified:
- 3 sites operating too close to shellfish beds;
- 2 sites near salmon rearing areas;
- 2 farms off lease areas;
- 6 sites with inadequate clean-up of debris (e.g. nets, feed bags, rope, chain, etc.).
The KTFC submission further states there are at least 10 farms located directly in “red zones” – areas identified as no opportunity for farming by stakeholders because of conflicts with salmon migration routes, shellfish beds, stream mouths, recreation areas, etc. In the territory claimed by the Ahousaht First Nation, one of fourteen (14) First Nation members of the Nuu-chah-nulth Tribal Council (NTC), there are fourteen (14) farms currently in “red zones”. In a recent court case involving removal of a salmon farm from a site within Ahousaht territory, Ahousaht members filed evidence of site interference with traditional herring fisheries and seal hunts, in addition to evidence offered of escaped farmed chinook salmon interbreeding with wild chinook used in traditional fisheries.
First Nations Recommendations
The KTFC, NTC and BC Aboriginal Fisheries Commission (BCAFC) made detailed submissions and recommendations to the SAR1. The NTC also published a comprehensive critical response to the findings, conclusions and recommendations of the Technical Advisory Team. In addition, the three organizations agreed to the Resolution of the First Nations of British Columbia In Concern of Wild Salmon and the Salmon Aquaculture Industry. In part, the resolution reads:
The First Nations of British Columbia are guided by two simple environmental objectives:
- To restore the environment within the territories of the First Nations to a healthy, sustainable level.
- To fully participate in all aspects of management, protection, and restoration of the environment within the territories of the First Nations to ensure that all present and future generations who will live in the territories will enjoy a healthy environment.
These fundamental objectives lead to the following resolution submitted to the First Nations Summit in concern of wild salmon and the salmon aquaculture industry.
Whereas the first priority of the First Nations is restoring wild salmon to the streams, rivers and lakes of their territories. Whereas the salmon aquaculture industry threatens existing salmon populations and restoration efforts. Whereas the salmon aquaculture industry as practiced directly infringes on the Aboriginal rights of First Nations.
Whereas serious health concerns raised by the First Nations regarding consumption of sea resources polluted by salmon farms have not been answered.
Be it therefore resolved that the First Nations of British Columbia support the continuation of the Provincial moratorium on the salmon aquaculture industry until the concerns of the First Nations are addressed to the satisfaction of the First Nations as stated in the following conditions.
1. Local First Nations shall have final approval in siting salmon aquaculture operations. First Nation siting approval shall extend retroactively to existing tenures, as or before leases and licences of occupation expire.
2. The health of First Nations people and others dependent on aquatic resources for their sustenance must receive priority attention and protection.
4. Immediately ban the use of medicated feeds in open net cage operations.
7. Phase out the culture of Atlantic salmon by prohibiting the incubation of Atlantic salmon eggs starting in 1998. Immediately prohibit the import of Atlantic salmon eggs.
11. Local First Nations Fisheries Guardians be trained and authorized to enforce salmon aquaculture regulations. Local First Nation’s Fisheries Guardians and Technicians be trained and employed to monitor environmental conditions of salmon aquaculture operations. Ö
Salmon Aquaculture Review Recommendations
Provincial acceptance and implementation of the SAR’s recommendations would have profound impacts on Kwakiutl and Nuu-chah-nulth First Nations. They often attempt to address First Nation ecological and health concerns within larger recommendations. Two of the forty-nine (49) recommendations, however, exclusively deal with First Nation issues:
Recommendation #38: Develop strategies to address First Nations concerns about siting of salmon farms.
This recommendation attempts to ensure provincial compliance with the Crown Lands Activities and Aboriginal Rights Policy Framework and address First Nation dissatisfaction with the decision making process for new and renewed tenures. As discussed above, it is more an obligation than a recommendation as the Crown now has a legal duty to consult aboriginal peoples so as to avoid unjustifiable infringement of aboriginal rights.
Recommendation #39: Develop strategies to involve First Nations in policy development and research management.
This recommendation generally looks to increase aboriginal participation in the salmon netcage industry through advisory bodies, employment, training, research and program delivery.
Evaluation of the Salmon Aquaculture Recommendations
Although numerous recommendations were made by both aboriginal groups and the SAR, for the sake of brevity I will focus here on key SAR recommendations in light of the five central recommendations outlined above in the KTFC/NTC/BCAFC joint resolution.
1. SAR Recommendation #38 suggests the Provincial government “Develop strategies to address First Nations concerns about siting of salmon farms.” As is obvious, this is far weaker than the First Nations demand that they have final approval over new and existing salmon farm tenures within their respective territories. SAR’s Recommendation #1 is, likewise, inadequate in its request that First Nations be invited to participate as members of the recommended permanent regional Fish Farm Review Committees.
2. The breadth of SAR’s recommendations is also problematic in that the First Nations concern about unknown health impacts specific to aboriginal people goes completely unaddressed. There is no recommendation for research regarding unique risks to First Nation health posed by heavy reliance on a diet of affected wild fisheries and a distinct genetic endowment affecting disease susceptibility.
4. SAR Recommendation #22 is to “Strengthen control of drug use on salmon farms.” This is clearly weaker than the First Nations Recommendation of immediately banning the use of medicated feeds in open net cage operations.
7. SAR Recommendation #11 states, “Continue to allow both Pacific and Atlantic cultureÖ”. This is simply contrary to the First Nations demand that farming of Atlantic salmon be phased out.
11. There is no expansion on SAR Recommendation #41, “Reduce risk through performance based program implementation supported by comprehensive monitoring.” This patently falls short of the First Nations Recommendation that First Nations Fisheries Guardians have authority to enforce aquaculture regulations and be contracted for environmental monitoring.
Thus, although the Environmental Assessment Office’s SAR made many recommendations on the issues of concern to First Nations the strength and breadth of key recommendations are inadequate to ensure these concerns are met. Conditions set by First Nations for removal of the provincial moratorium on salmon aquaculture tenures have not been met3. On a final note, it is worth noting that the SAR made no recommendations on what appears to be the underlying issue in First Nation submissions: distrust of industry and government. This is concerning as during the SAR aboriginal groups expressed a perspective on history as one of earned distrust of industry and government: 1) the recent development of aquaculture is seen as the newest industrial threat to traditional wild fisheries, one preceded by irresponsible industrial logging to the edge of vital rivers banks and an overly exploitive industrial interception fishery; 2) any threats posed by aquaculture to the health of aboriginal people is seen in the context of a history of recurring debilitation from contraction of foreign diseases.
Delgamuukw (Supreme Court of Canada, December 1997)
The December 11th, 1997 Delgamuukw decision was the first to define aboriginal title in detail. The Supreme Court of Canada found that aboriginal title is a subset of aboriginal rights and is thus protected in s.35(1) of Constitution Act, 1982. Further, aboriginal title is a right in land which is distinct from the activity rights addressed by the Supreme Court of Canada in R. v. Sparrow and later in R. v. Van der Peet (1996).
The Van der Peet decision outlined the test for s.35(1) aboriginal rights to engage in activities integral to their distinctive cultures (e.g. fishing, hunting, etc.). In Delgamuukw, by contrast, aboriginal title as a right in land is based not on practices or uses but on occupation prior to the assertion of British sovereignty over the area where the aboriginal people live. Thus, aboriginal title is a broad communal right to exclusively use the land for a variety of activities not all of which need to be integral to the distinctive culture of the aboriginal people. This broad right, however, is subject to the limitation that chosen land uses must be compatible with the ongoing special bond that exists between aboriginal communities and their lands. The decision will apply to salmon aquaculture tenures (and licences) so far as the sites, previously thought to be on provincial Crown lands as defined under statute, are subject to claims of aboriginal title and rights.
As mentioned above, aboriginal rights in general may be infringed by both the federal and provincial governments if the government can satisfy a justification test.
The range of legislative objectives which can justify an infringement of aboriginal title is broader than with the activity rights. It includes the development of agriculture, mining, forestry, hydroelectric power, general economic development, infrastructure and the settlement of foreign populations. Although the proliferation of aquaculture is not mentioned in the decision it may fall within the category of general economic development and thus be a compelling legislative objective.
With respect to the Crown’s fiduciary obligations to aboriginal peoples, three aspects of title are relevant: that it is exclusive; that it includes the right to choose to what uses the land may be put; and that it has an economic component. There is always a duty of consultation, particularly because title includes the right to choose land uses. The scope of the duty, however, depends on the circumstances. If the breach is less serious the duty may be only to discuss always in good faith with the intention of addressing the concerns of the aboriginal people. Some cases may require full consent. Because of the economic element of aboriginal title compensation will ordinarily be required for breach of title. The amount of compensation will likely depend on the nature of the breach and the nature of the title, but the Court declined to address the question. With respect to aquaculture, the development of the salmon farming industry in areas subject to aboriginal title will always require consultation, may require consent and very likely will require compensation to First Nations.
It would thus be foolhardy for the Province to lift the current moratorium on issuing salmon aquaculture tenures based solely on acceptance of the SAR recommendations. These recommendations are the product of a process in which participants operated without knowledge of current constitutional law. The Province must address salmon aquaculture in the context of a larger provincial policy response to the Delgamuukw decision.
Future Options for First Nations
Section 35(1) of Constitution Act, 1982 is at a minimum a firm basis for negotiations between First Nations and both the provincial and federal governments. Further, the judiciary has on numerous occasions indicated its preference for settling broader issues under s.35(1) through negotiation rather than litigation. Provincial acceptance of SAR recommendations #38 and #39 would be a first step in embracing an opportunity to negotiate the involvement of First Nations in tenuring, policy and management processes designed to ensure non-infringement of aboriginal rights by aquaculture siting and operations. Where First Nations are not satisfied with the negotiation process s.35(1) provides a basis for litigation.
Litigation by First Nations may include actions seeking a declaration of aboriginal rights, judicial review of government approvals under statute and even the common law torts of negligence, nuisance and trespass to lands. Each of these avenues may involve injunctions as remedies.
1. Declarations of Aboriginal Rights
Any First Nation affected adversely by salmon farming could seek a court declaration of its s.35(1) rights. This could include a claim to aboriginal activity rights (e.g. salmon fishing generally or even at a specific site), aboriginal title (e.g. a specific shellfish fishery site or whole territory) or treaty rights (e.g. a Kwakiutl Band is party to a Douglas Treaty which guarantees the right to “carry out our fisheries as formerly”.) Within this process the First Nation could seek an interim injunction prohibiting the relevant party from adversely affecting its rights.
2. Judicial Review of Government Approvals Under Statute
A First Nation could also seek judicial review of a aquaculture licensing or tenure decision made by a public authority. For example, where a licence of occupation is being or has been newly issued, renewed or amended the Minister of Environment, a First Nation may have grounds to obtain a judicial order quashing the decision and/or forcing the decision maker to perform his/her duty of consultation.
3. Common Law Environmental Causes of Action
The common law torts of negligence, nuisance and trespass may be grounds for legal action by First Nation against private individuals involved with salmon farming and governments.
a) Negligence – A party may be held liable for his/her/its carelessness causing foreseeable harm. For example, a salmon farm operator may be found liable for causing damage to traditional aboriginal fishery habitat through careless operating practices.
b) Nuisance – An unreasonable interference with a right to use and enjoy property could be grounds for liability. For example, a salmon farm operator may be legally accountable for unreasonably interfering with access to a traditional aboriginal fishing ground.
c) Trespass to Lands – Common law trespass involves a direct voluntary breach of the boundaries of another’s land. A farm operator, for example, could be committing trespass if the farm is within a harbour
Chapter 8: CONCLUSIONS
The Environmental Assessment Office had a formidable challenge in conducting a review of the salmon aquaculture industry. The EAO was called upon to examine virtually every aspect of the industry, especially concerns relating to fish waste, siting of farms, impacts caused by escaped fish, health of both farm and wild fish, impacts on other mammals, as well as substantial questions relating to First Nations’ interests.
Five volumes and 49 recommendations later, major concerns remain.
The TAT concluded that salmon farming in British Columbia, as presently practiced and at current production levels, posed a low overall risk to the environment. In our opinion, this conclusion was based on inconclusive evidence. Significant gaps exist in the relevant scientific data. We feel that the SAR report should have employed a precautionary approach. That would have facilitated a more cautious and complete assessment of the potential negative impacts of salmon aquaculture on the marine environment.
The SAR report’s other major shortcoming involves First Nations. The coastal cultures of many of these groups are especially vulnerable to disruptions in the marine environment. The report, in our view, falls far short of addressing the ecological and cultural concerns of First Nations, as well as the government’s constitutional obligation to protect aboriginal rights.
TAT’s conclusion that aquaculture is low risk was based on current production levels. Therefore, the government of British Columbia should not use the SAR report to justify lifting the moratorium on the granting of new aquaculture tenures. Aquaculture is expected to grow six to tenfold over the next several years. Once the moratorium is lifted, we can safely assume that the aquaculture industry will be prepared to grow rapidly. This will result in vast increases in the amount of untreated waste going into the ocean. It will also exacerbate the problem of escaping salmon and the accompanying risks of disease, genetic dilution and disruption of habitat. We can also anticipate that wildlife living near the B.C. coast will be killed or displaced.
Based on our review, we have concluded that closed containment systems are the best means to avoid environmental harm, especially if the aquaculture industry expands. Alternatively, we would recommend a continuation of the moratorium until a complete regulatory scheme is put into place that will ensure that environmental and First Nations concerns have been adequately addressed.
If the salmon aquaculture industry is permitted to carry on with minimal regulation and insufficient regard for the marine environment, then our dwindling wild salmon stocks may be irrevocably harmed. Salmon aquaculture is here to stay. Lets ensure that our wild stocks are as well.
Weber, M. 1997. Farming Salmon: A Briefing Book. A report of the Consultative Group on Biological Diversity.
Burd, Dr. Brenda, 1997. Salmon Aquaculture Review (v. 3 Part D): Waste Discharges.
EAO. 1997. Salmon Aquaculture Review (v.1): Report of the Environmental Assessment Office.
EAO1. 1996. Response to Public Comment on Proposed Review Process and Draft Terms of Reference. )
Ellis, D., and associates. 1996. Net Loss: The Salmon Netcage Industry in British Columbia.
Goldburg, R. & T. Triplett. Murky Waters: Environmental Effects of Aquaculture in the US. A report of the Environmental Defense Fund.
Georgia Straight Alliance. 1997. Err on the Wild Side.
Gustavson, K. 1997. Salmon Aquaculture Review (v. 4 Part D): Overview of Existing and Developing Technologies for Commercial Salmon Culture.
Hillyer, A. 1997. Salmon Aquaculture Review (v. 4 Part B): The Management and Regulatory Framework for Salmon Aquaculture in British Columbia.
TAT. 1997. Salmon Aquaculture Review (v. 3 Part A):Technical Advisory Team Findings And Recommendations Report.
1 It is important to note that the Musgamagw Tsawataineuk Tribal Council and the Kwa-wa-aineuk Indian Band also made written submissions to the SAR. Although they were brief, the submissions were abundantly clear that these aboriginal groups have zero tolerance for salmon farming within their traditional territories. 2 This sub-resolution was considered by the First Nation Summit on May 15, 1997 and passed by a strong majority (See SAR Vol. 2, p. 1). 3 Supra, note 1.
4 In the context of aboriginal rights the Farm Practices Protections (Right to Farm) Act would likely not protect aquaculture from nuisance suits as aboriginal rights are constitutionally enshrined.