Aquaculture Activities Regulations Open for Comment

September 9, 2014

The federal government’s proposed regulations to close a longstanding regulatory gap for the aquaculture industry is now open for comment. On August 23, 2014, notice of the proposed Aquaculture Activities Regulations (“AAR”) were published in Part I of the Canada Gazette (Click here for link). The AAR is intended to reduce some of the legal uncertainties that have historically affected the aquaculture industry, for example by prescribing the conditions under which the industry may deposit deleterious substances also defined in the AAR. Interested persons are invited to make representations to Ed Porter, Manager, Aquaculture Policy and Regulatory Initiatives, Department of Fisheries and Oceans, concerning the proposed AAR within 60 days of the notice.

By way of a brief legal history, the Canadian aquaculture industry has long operated under a complex jurisdictional tapestry. Under section 92 of the Constitution Act, 1867, the federal government has jurisdiction over fisheries, whereas provinces have also regulated the industry pursuant to their jurisdiction over property and civil rights in the province. However, in 2009, the British Columbia Supreme Court held in Morton v. British Columbia (Agriculture and Lands) that the province did not have jurisdiction to regulate finfish aquaculture as the industry was a “fishery” under Parliament’s exclusive jurisdiction.  In December 2010 finfish aquaculture in British Columbia became subject to federal law under the Pacific Aquaculture Regulations, although the province retained its jurisdiction over some aspects of the industry including issuing tenures and managing business and labour on fish farms. Since the court’s decision is only binding in British Columbia, however, it did not affect the regulation of aquaculture in the rest of the country.

The Pacific Aquaculture Regulations, enacted so that the federal government was prepared to accept full jurisdiction over the finfish aquaculture industry in British Columbia, allowed aquaculture sites to continue to operate but were far from comprehensive. In particular, they did not address the aquaculture industry’s longstanding concern that the industry was potentially depositing deleterious substances contrary to section 36 of the Fisheries Act when using therapeutants in aquaculture facilities.  The AAR proposes to close this regulatory gap, both in British Columbia and elsewhere in Canada, by defining what constitutes a deleterious substance and prescribing the conditions for the use and deposition of substances in the course of aquaculture operations without contravening section 36 of the Fisheries Act. As the Regulatory Impact Analysis Statement published with the proposed text of the AAR summarizes (but does not form part of the AAR itself):

“Under the proposed Regulations, the authorization of the specified activities would be subject to conditions, namely the following:

  • The aquaculture facility is operated under an aquaculture licence. This includes a licence issued under the Pacific Aquaculture Regulations and, in Prince Edward Island, a licence or a lease issued or granted by the Minister under section 7 or 58 of the Fisheries Act for the purpose of aquaculture. In any other province, a licence is a provincial licence or authorization for the operation of an aquaculture facility;
  • The deposit of products to control fish pathogens, pests and biofouling occurs in the operation of an aquaculture facility;
  • In depositing these products, the owner or operator takes reasonable measures that minimize detriment to fish — other than fish that pose a risk of harm to fish cultivated in the facility or to equipment used in the operation of the facility — and fish habitat;
  • Specific requirements include the following:
  • any drug deposited must be prescribed by a veterinarian licensed in the province in which the drug is deposited;
  • any registered pest control product must be used in compliance with any conditions specified under the Pest Control Products Act;
  • where a treatment product is deposited to control pests, the owner or operator must first consider alternatives and make a record of those considerations;
  • any unregistered pest control product can only be used as authorized under subsection 21(5) or 41(1) of the Pest Control Products Act, or if it is exempted under paragraph 67(1)(z.4) of the Pest Control Products Act;
  • the owner or operator must take measures to minimize the risk of accidental deposit of drugs or pest control products;
  • the owner or operator must take measures to minimize the deposit of fish feces, unconsumed feed, or organic matter resulting from biofouling control;
  • for marine finfish facilities located over soft ocean bottom, monitoring of the oxic state of the sediments in the vicinity of the facility is required and the owner or operator must take measures such that the concentration of free sulfide in the sediments is within the applicable concentration limits;
  • if unusual fish morbidity or mortality is observed outside the aquaculture facility, within 96 hours of the deposit of a drug or pest control product, the owner or operator must notify a fishery officer within 24 hours, and cease the deposit of that substance until the results of a tissue sample analysis have been provided to the Minister; and
  • following an observation of unusual fish morbidity or mortality, the owner or operator will also be required to take water column and sediment samples and submit those results with the annual report;
  • Unauthorized deposit of a deleterious substance is subject to prosecution under the Fisheries Act; and
  • The owner or operator must submit an annual report to the Minister, in a form acceptable to the Minister, which contains the following information:
  • the product name of the drug or pest control product, the purpose of the deposit, the date and quantity of the deposit, and a record of consideration of alternatives to treatment;
  • a description of any measures taken to mitigate detriment to fish and fish habitat;
  • the results of monitoring the sediments on marine finfish facilities located over soft ocean bottom;
  • information related to any observation of unusual fish morbidity or mortality associated with a deposit, including the time, location, and species involved; and
  • for new or expanded facilities for finfish, the habitat, species, and oceanographic conditions present at the facility and the predicted area of deposition.”

Importantly, the proposed AAR also prescribes works, undertakings, activities and conditions which may be carried out without contravening section 35(1) of the Fisheries Act which prohibits causing “serious harm to fish”.  It also prescribes the killing of fish by the President of the Canadian Food Inspection Agency for the purpose of fish pathogen testing or pest control and the Health of Animals Act such that these do not contravene section 35(1).

As noted above, the deadline for representations is 60 days after publication of the notice. Should you desire legal assistance to make representations on the AAR, please contact me to discuss whether I may be of assistance.  Please contact me to request a consultation.

DISCLAIMER: NOT LEGAL ADVICE.  This article is for information purposes only and is not intended to be relied on as legal advice. You should not rely on, or take or fail to take any action, based upon this information, or disregard professional legal advice or delay in seeking legal advice because of something you have read on this site or in this article. The author, Shane R. Hopkins-Utter would be pleased to discuss resolutions to specific legal concerns you may have.

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